Citation: 2010 TCC 552
Date: 20101029
Dockets: 2004-3561(IT)G
2004-3567(IT)G
2004-4573(IT)G
BETWEEN:
RONALD ROBERTSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
AND BETWEEN:
ROGER SAUNDERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Hershfield J.
Part 1:
Introduction
[1] The Appellants, Ronald Robertson and Roger
Saunders are Indians as defined in section 2 of the Indian Act and are
members of the Norway House First Nation. The Norway House First Nation is a
signatory to Treaty Number 5 signed in 1875.
[2] The Appellants derive income from fishing
during the summer months and collect employment insurance during the winter
months. The Minister of National Revenue (the “Minister”) has assessed
such incomes as taxable as follows:
|
Taxpayers
|
1999
|
2000
|
2001
|
2002
|
2003
|
|
Robert
Robertson
Income from a
Business
EI Benefits
Roger
Saunders
Income from a Business
EI Benefits
|
$24,995
$10,690
|
$25,990
$ 9,285
|
$13,282
$12,580
|
$17,970
$10,325
$11,811$9,615
|
$19,452 $ 9,912
|
[3] The Appellants appeal the subject
assessments on the basis that:
1.
The subject incomes
(benefits) are exempt from taxation by virtue of section 81 of the Income
Tax Act (the “Act”) and section 87 of the Indian Act and or
the provisions of Treaty Number 5.
2.
The Application of the Act
is an infringement or interference with an existing aboriginal right contrary
to subsection 35(1) of the Constitution Act 1982.
[4] A Partial Agreed Statement of Facts (the
“Agreed Facts”) was submitted to the Court and is appended to these Reasons as
Schedule 1. A summary of the counsels’ submissions is appended as Schedule 2.
[5] The factual circumstances pertaining to
each of the Appellants is, for the most part, the same. Indeed the parties
have, in general terms at least, acknowledged that the outcome of these Appeals
will not depend on any factual differences that might exist between the Appellants.
I do note, however, that one potential difference of significance is that the
Appellant, Roger Saunders, during the years under appeal, 2002 and 2003,
resided off-reserve. At the end of these Reasons, I will make a brief comment
in respect of this difference as it impacts on these Appeals.
[6] The Appeals were heard on common evidence
although only Mr. Robertson testified at the hearing. Mr. Roger Saunders could
not appear for medical reasons. Both parties called two witnesses, including
one expert each. A brief overview of their respective reports, testimony and
qualifications is attached to these Reasons as Schedule 3.
[7] I will, however,
make a few general observations concerning the expert evidence. To do so
requires a very brief summary of how the Appeals were framed. That summary in
turn requires an understanding of the structure of fishing operations at Norway
House.
[8] The Appellants are
members of the Norway House Fishermen’s Co-operative (the “Co-op”) which,
pursuant to a contractual arrangement with the Freshwater Fish Marketing
Corporation (“Freshwater”), handles the dealings between the Co-op members who
fish and Freshwater that acquires the fish for distribution in its world wide
market. It is admitted that the Co-op acts as the agent for Freshwater in the
purchase of fish from the Appellants.
[9] Given
this structure, admissions in the Agreed Facts and the testimony of Mr. Robertson,
it can be said that the Appellants fished commercially, for commercial
purposes. That is not to say, however, that they accept that their fishing
activities were in the commercial mainstream. Further, even accepting that the
Appellants were in business or self-employed and fishing commercially, for
commercial purposes, does not suggest that the personal property at issue, the
income from fishing, was other than personal property held qua Indian on
the reserve.
[10] Given this framework,
the expert evidence was directed primarily at providing opinions as to whether
the fishing activities of the aboriginal people on the reserve at the time of
entering the Treaty were “commercial”. The objective appears to relate to some
extent to the constitutional issue which asks whether the Appellants have a
protected right under the Constitution Act
to fish in the manner they fished. However, a determination of such right
requires examination of the nature of the activity pre-contact and the
sufficiency of its continuity to the present. As I will point out later in
these Reasons, the expert reports have little value in resolving such issues.
[11] Further, a
determination that a constitutional right to fish commercially exists would
only beg the question of whether the taxation of the income from that protected
activity would constitute an unjustified infringement of that right. This
aspect of the Constitutional analysis overlaps, to some extent, with the
analysis required under section 87 of the Indian Act. Indeed, evidence
that the Appellants’ fishing practices form part of an ancestral custom will,
in my analysis, be a important factor in the determining the application of the
section 87 exemption. Its importance lies in identifying the income from
fishing as property earned qua Indian and, as well, fuels the
Appellants’ argument that the commerciality of the activity today, even if in
the commercial mainstream, cannot be a disconnecting factor where the income
earned is part of the customary way of life of the Norway House Cree First Nation.
That is, the debate as to the extent of the activity’s attachment to life on
the reserve, as a commercial activity now, compared to the extent its
attachment to the economic life on the reserve at the time of and preceding
entering into the Treaty, has become an important adjunct to the section 87
analysis in this case. It is in this context that the expert reports and
testimony have value.
[12] This aspect of the
analysis, has led me to conclude that the property in question, income from
fishing, was as integral to life at Norway House at the time of the Treaty, as
it is today, in the lives of the people on the reserve. As such, when
considered in light of the other factors that connect the income to the reserve,
that conclusion favours a finding that it is property earned qua Indian
on the reserve. In coming to that conclusion, the expert evidence of the
Appellants’ expert, Dr. Lytwyn, was particularly helpful. It supports a finding
that, in fact, the aboriginal people of Norway House derived a livelihood and
had an income source from fishing that was material to the Native community at
Norway House at the time of the Treaty.
[13] Indeed, given the
expert evidence, I have been faced with the challenge of dealing with the “commercial
mainstream” test in a new light. As these Reasons will suggest, such evidence
has persuaded me to find that the Appellants cannot be said to be engaged in an
activity that should, in the context of the application of section 87, be swept
into the commercial mainstream because a third party, Freshwater, has come to
their reserve to acquire fish, and made a traditional livelihood and income
source appear to be linked to the external market that Freshwater has
developed. Further, even if that linkage tends to prejudice a claim for section
87 protection, it is only one factor to be considered and as these Reasons will
also conclude, it is not a factor that I would give much weight in this case. In
part, I come to that conclusion based on evidence of sufficient commerciality
at the time of the Treaty to the fishing activities of the aboriginal people of
Norway House to defuse the relevance of its connection to global markets today.
[14] It is in this
context then that I offer a few general observations concerning the expert
evidence which have been muddied by different views of what constitutes a commercial
activity. Indeed, the Respondent’s expert has come up with her own definition
that would condemn any chance of finding a degree of similarity between the
activity now and that of the Norway House aboriginal people at the time of and
preceding entering into the Treaty. Needless to say, I do not feel bound by any
such definitions.
[15] In any event, the
Appellants’ expert provided his opinion that the fishing activities of the
ancestors of the Appellants, that he referred to as Upland Cree, at the time of
the Treaty, were commercial activities. He ultimately relied on a very broad
definition of “commercial”. It included not only trading fish for goods but a
wider notion of bartering where there was a mutual expectation of consideration
being given for fish provided by Upland Cree in the Norway House district to
the non-aboriginal community operating (commercially) at Norway House as a Hudson’s Bay Company trading
post.
[16] The
Respondent’s expert witness report was a rebuttal report. Although she did
conclude that the fishing activities of the ancestors of the Appellants at the
time of the Treaty were not commercial activities, which she narrowly defined
to exclude trade and barter transactions, her report, as a rebuttal, was in
many respects devoted to argumentatively pointing out the absence of absolute
proofs of who caught what fish, where they were caught, how they were exchanged
and for what consideration. For example, by pointing out that the Appellants’
expert could not say for sure that a particular transaction, relied on in his
report, was engaged in by an aboriginal person who was actually a resident of
Norway House or that fish traded were from a particular area or that the compensation
received by the aboriginal person was not from employment (which went beyond
her narrow definition of a “commercial” transaction), some of his detailing of
factual transactions and conclusions were attacked. However, the attacks were
based on her putting a burden of proof on the Appellants’ expert that was well
beyond that which was necessary given the nature of the analysis I was undertaking.
[17] On balance then, I
prefer the evidence of the Appellant’s expert witness. His expertise is not in
issue. That some of his report might be said to have presented some records as
factual proofs when it may have been presumptuous to do so, does not persuade
me to disregard much of his report and testimony. I believe his report and
testimony as a whole demonstrated a much better appreciation of what I needed
to know in the context of my analysis. His evidence in that regard was frank,
open-minded and on balance much more credible than that of the Respondent’s
witness who stayed true to her adversarial role in the defence of her rigid
definition of “commercial” which, given the context in which I needed to
consider its relevance, was unhelpful.
[18] In addition to those
general observations, there is one finding relating to Dr. Lytwyn’s report that
warrants particular recognition. I accept his evidence that at the time of entering
into the Treaty the trade in isinglass, a product made from the bladder lining
of sturgeon, was being carried on by the aboriginal people of Norway House, or
at least the Upland Cree in the Norway House district, from sturgeon harvested
in the Norway House district. I find as well that such trade was part of what
was the commercial mainstream of trade carried on by the Hudson’s Bay Company at Norway
House at that time. While this finding alone could result in my allowing the Appeals,
given the way in which the parties have directed the issue before me, it is not
the main thrust of these Reasons or my conclusion.
[19] With that background
in mind, I will now divide
these Reasons into 4 further parts:
Part 2: Historical Overview
1.
Pre-Treaty: The interaction
of the Norway House Cree and the Hudson’s Bay Company;
2.
Treaty Number 5;
3.
Post-Treaty: The demise
of the Hudson’s Bay post and the introduction of
commercial fisheries;
4.
More recent
developments: Agreements and Enactments affecting the Norway House First Nation.
Part 3: Current Fishing Practises
1. The evidence of L.
Saunders, President of the Co-op;
2. The evidence of
Ronald Robertson, Appellant;
3. The evidence of David
Bergunder, Director, Field Operations for Freshwater.
Part 4: Analysis
1.
The Natural Resource
Transfer Agreement;
2. Section 87; The Erosion of the Entitlement of the Appellants qua
Indians; The Connecting Factors
i) the location of the activities;
ii) the engager of the services and
debtor; and
iii) the
commercial mainstream.
3. Distinguishing
authorities relied on by the Respondent
i) Southwind v. Canada;
ii) Bell v. Canada;
iii) Ballantyne v. Canada .
4. Subsection
87(2);
5. Section
35.
Part 5: Conclusions
Part 2: Historical
Overview
1. Pre-Treaty; The
interaction of the Norway House Cree and the Hudson’s Bay Company
[20] Unlike what I
presume to be the case of other reserves, Norway House grew from a non-aboriginal
trading post settlement, namely a Hudson’s Bay Company post. It served as a major transhipment
post moving goods northeast to York Factory where they were shipped by sea to England. Similarly, supplies
from England destined for Hudson’s Bay posts in central Canada and west arrived
at York Factory and made their way by waterway to Norway House located on the
northern end of Lake Winnipeg near the mouth of a waterway system that allowed
for the shipment of goods to and from the southeast and west, as well as north,
to and from York Factory.
[21] Distinct from the
post itself, a relatively small area, there are vast tracks of land to the
north, east and west that were the hunting and fishing grounds of what are
known as the Upland Cree. These aboriginal people hunted and fished for their
subsistence throughout this larger area referred to by Dr. Lytwyn as the Norway
House district. Such district has more recently been identified by the
Government of Manitoba as the Norway House Resource Management Area. It encompasses the boundaries of the
Upland Cree trap lines and includes the traditional ancestral fishing areas of the
Nation of aboriginal people who became the Norway House Band.
[22] Given its role as a
major transhipment post, there was considerable coming and going by Upland Cree
at Norway House since its inception in about 1796. Indeed, the movement of aboriginal
people generally tends to blur, to some extent, distinctions sought to be made
among different First Nations. It is
difficult to pinpoint the identity of the aboriginal people that hunted and
fished in the Norway House district. Dr. Lytwyn described the movement of the Native
people, the non-sedentary nature of their lifestyle prior to the treaties and
the mixing that blurs distinctions. Still, any such movement and mixing does
not distract from the conclusion that the ancestral practices of the Upland
Cree, as I will refer to them, mixed or otherwise, involved a certain
interaction with the Hudson’s Bay Company. That interaction is pivotal to the
part of my analysis that focuses on the commercial nature of the fishing activities
of the Native people of Norway House at the time of and before entering into
the Treaty.
[23] While the Hudson’s Bay Company journals and account books
are a treasure of historical records and information it was impossible for even
the learned and expert witnesses, who testified at the hearing of these Appeals,
to say with certainty, how much trade was taking place between the Company and the
Upland Cree residing at Norway House and the Upland Cree who lived and sought
out their way of life within the Norway House district but did not reside at
Norway House, versus the trade that was taking place with other First Nations people
from the northeast, southeast and west, who were known to trade at Norway House,
given its role as a major transhipment post.
[24] At this point, suffice
it to say that Dr. Lytwyn was adamant and earnest in his testimony that at
least the Upland Cree hunting and fishing in the larger Norway House district,
which as I have said I take to be essentially the same as the Norway House Resource
Management Area, were trading fish at Norway House in a commercial sense in
significant quantities. They were also trading fish by-products such as fish oil
and more particularly isinglass that had a market in Europe in the manufacture
of other products such as glue.
[25] Dr. Lovisek, the Respondent’s
expert witness, who was retained as a rebuttal witness, expressed her opinion
that the Native residents of Norway House would have only assisted the Hudson’s Bay’s employed non-Native
fishers. She maintained, as well, that such resident aboriginal people were
“employed” by the Hudson’s Bay Company and as such they could not be considered as having been
engaged in trade in a commercial sense as she narrowly defined that activity.
As to trade in isinglass, in the commercial quantities uncovered by Dr. Lytwyn,
she maintained that there was no evidence that it was produced by residents of
Norway House. According to her, the quantities reported in Hudson’s Bay accounts could
have come through Norway House in transit from the southeast, from the Rainy River and Lake of the Woods
areas, where records of isinglass production were associated with a different First
Nation.
[26] I touch again on
this difference in the approaches of the two experts as it gives some context
to this historical overview. It is not disputed that Norway House, when it
operated as a post, was never largely dependent on fish for food acquired by barter
or otherwise from aboriginal people. Nor does the evidence suggest that fish per
se was being marketed by the Company as food for other destinations. The
food supply at the post was for the most part provided by non-aboriginal fishers
employed by the Company. They were sufficiently accomplished in performing
their role as to suggest that the post was not, for the most part, dependant on
a fish trade with the Native residents at Norway House or elsewhere. Dr.
Lovisek went so far as to suggest that the non-aboriginal employees would not have
relied on the local aboriginal people for assistance in locating local fisheries.
There is no evidence of that suggestion being reliable or not, but regardless,
I accept, as I have said and as I believe Dr. Lytwyn ultimately admitted, it is
likely that the Hudson’s Bay Company did not rely to a major extent on trade with the aboriginal
residents of Norway House for fish, for food or export. That is not to say it
did not trade with the aboriginal residents of Norway House or the Upland Cree
of the Norway House district to obtain fish.
[27] Indeed, it must be
acknowledged that the dependency of the Hudson’s Bay Company on the Upland Cree
is not the heart of the question before me. More important to my mind is seeing
how the ancestral tradition of fishing of the Upland Cree, which is not denied,
impacted the lives of this nation of people prior to the Treaty. From their
perspective, was it an integral part of their livelihood?
[28] Consider first, the
number of aboriginal people that lived at Norway House. The evidence suggests
that in the 1820s it was 5 families. There is no evidence before me that
suggests how much it grew by 1875 but it seems to be acknowledged that it was a
small group of families. I
also accept Dr. Lytwyn’s evidence that the Hudson’s Bay Company first began to
employ the aboriginal people of Norway House in 1847 to assist the non-aboriginal
fishers. Regardless of the nature of the engagement and the nature of the
assistance provided, we have a number of employed aboriginal people living in a
very small Native community on a non-aboriginal post deriving some part, a good
part, of their livelihood from fishing. Indeed the scale of support from
fishing that the Norway House Native people depended on in the 1800s might well
have exceeded the extent of such dependency today. Regardless, it is irrefutable
that from their perspective, being involved in the fishing activities that kept
the post at Norway House fed, was an integral part of their livelihood.
[29] As well, I accept
Dr. Lytwyn’s general thesis that there would inevitably have been trading of
one sort or another, small barter transactions with some expected consideration
for fish brought to the post, between Upland Cree, hunting and fishing in the
Norway House district, and the Company. In this sense there were commercial
transactions occurring as an integral part of the life and livelihood of the ancestors
of the Norway House Band members today.
[30] That is not to
suggest however, that even in today’s terms, large scale fishing was not being
engaged in by Upland Cree in the Norway House district. Indeed, there is a
report in 1828 of aboriginal people bringing in thousands of fish from a nearby
fishing weir. It is accepted that such weirs were traditionally constructed and
fished by aboriginal people and could produce catches in quantities of
commercial significance even in today’s terms. Such catches would have value to
the post.
[31] Further, in
accepting this evidence, I have considered some outside sources referred to by
Dr. Lytwyn. Of some influence are historical reports of vast fisheries existing
in Playgreen
Lake, one of the very lakes
a short distance from the reserve where the Appellants fish today. Of the fish
documented to be plentiful are sturgeon, a fish used not only for food but also
for oil and isinglass both of which were by-products traded commercially by the
aboriginal people of the area. Indeed, in respect of the trade in isinglass,
Dr. Lytwyn noted recorded trade accounts at Norway House from 1813 to 1819 and
then again from 1831 to 1876 when it appears the demand for the product made it
worthwhile again for the aboriginal people to produce it for trade. The records
sourced the trades from various posts. Accounts between 1870 and 1873 record
almost 600 pounds of isinglass acquired at Norway House. At an estimate of 10 sturgeon
to produce 1 pound of isinglass, that equates to 6000 sturgeon harvested as
part of this local economy.
2. Treaty Number 5
[32] The Norway House First Nation was a signatory to
Treaty Number 5 with the Crown. This Treaty evidences that certain fishing
practices of the Norway House Cree Nation were recognized by the Crown as being
an entitlement that required protection. The relevant portion states:
Her Majesty
further agrees with Her said Indians, that they, the said Indians, shall
have right to pursue their avocations of hunting and fishing throughout the
tract surrendered as hereinbefore described, subject to such regulations as
may from time to time be made by Her Government of Her Dominion of Canada, and
saving and excepting such tracts as may, from time to time, be required or
taken up for settlement, mining, lumbering or other purposes, by Her said
Government of the Dominion of Canada, or by any of the subjects thereof duly
authorized therefore by the said Government. [Emphasis
added.]
[33] Dr. Lovisek’s
Rebuttal Report includes documents that explain that the intention of Treaty
Number 5 was to provide suitable settlements as a means for the Native people
to adapt to new economic and social conditions. These conditions included a
significant decline in
the fisheries causing a major disruption
in the Native people’s lives; people who held themselves to be fishermen by
trade and culture.
[34] The Treaty and Dr. Lovisek’s observation appear to
shape a view that reflects the perspective of the members of the Norway House
Band today, a view that surfaces again and again, as will be noted below, in my
discussion of post- Treaty events. That view is that at the time of entering
into the Treaty, it was and continues to be unequivocally recognized that the
Norway House Cree fished as an avocation and as a trade.
3. Post-Treaty: The
demise of the Hudson’s Bay post and the introduction of
commercial fisheries
[35] While the evidence
does not pinpoint the exact details and time of the demise of the Hudson’s Bay Company’s post at
Norway House, in approximate terms it seems to pretty much coincide with the
signing of Treaty Number 5. By this time or within a short time after this
event, Norway House ceased to be of importance to the Hudson’s Bay Company. The aboriginal
people at the post, who historically had made no formal claim of ownership of
lands on which the post was, or was previously, located, or of their
traditional hunting and fishing grounds, were granted the small track of land
where they lived as a reserve. In spite of the fact that negotiations included
demands for arable lands, the track granted was limited to what appears to be
lands where the post was located and from which they could pursue their
acknowledged avocations of hunting and fishing.
[36] That restricted
grant of reserve status had promises of further grants which have since been
revisited. Pursuant to an agreement with the federal and provincial governments
that I will expound on shortly, such promises are now being acted upon and reserve
status is in the process of being extended to include much of the lands that
are relevant to these Appeals.
[37] Before dealing with
the expansion of reserve lands more than a century after the Treaty, a brief
comment on the conditions at the time of the Treaty is warranted.
[38] Although there is
evidence of a significant decline in the fisheries at around the time of the
Treaty, within a short time thereafter, in the mid 1880s, the residents of
Norway House found they could trade with the commercial fishers from the south
who had begun to exploit northern Lake Winnipeg and its nearby lakes to satisfy
markets south of the lake. There was no structured relationship between
aboriginal fishers and these commercial enterprises but even the Crown’s
expert, Dr. Lovisek, acknowledged that that relationship was one that engaged
Norway House fishers in commercial fishing by her definition. That the Norway
House fishers might be seen, from their own perspective, as using their
existent and historical fishing know-how and the knowledge of their traditional
fisheries once again as a means of pursuing a livelihood, did not impress her
as relevant. It was not what the aboriginal people did that mattered to her but
rather it was the commercial context brought to the picture by the buyers of
their catches and the nature of their relationship with those buyers. They were
now paid as independent contractors for fish caught and sold to commercial
enterprises that in turn marketed them in the commercial mainstream. That is,
in her view, it not until a short time after the Treaty, that the aboriginal
people of Norway House began a commercial activity.
4. More recent
developments: Agreements and Enactments affecting the Norway House First Nation
[39] The next series of
events that lead up to the present, involve the flooding of traditional lands
of the Norway House people for which compensation was sought and given
(Compensation Lands) and, as well, the settlement of land entitlement claims
(Treaty Land Entitlement or TLE Lands). As a result of these claims, agreements
were entered into that led to, amongst other things, the promise of new reserve
lands and the recognition of the Norway House Resource Management Area referred
to earlier in these Reasons (the Resource Management Area).
[40] These agreements
deal with areas that are relevant to the question of whether the Appellants' fishing activities take place on the
reserve or are sufficiently connected to the reserve to be of relevance to the
required analysis. In this case, fishing activities that do not take place on
the reserve are undertaken within the Resource Management Area and more
particularly, primarily on lands and waters adjacent to lands that are either Compensation
Lands or TLE Lands earmarked for reserve status.
[41] The best overview
of these areas can be seen on Exhibit A-4. The Resource Management Area
encompasses the Compensation Lands and the TLE
Lands and is defined and set out in what
is labeled “The Master Implementation Agreement” (the “MIA”). It is an
agreement between Canada, the province of Manitoba, the Norway House Cree Nation and Manitoba
Hydro-Electric Board (“Hydro”).
[42] The purpose of
the MIA was to resolve issues that remained outstanding from the Northern Flood
Agreement (“NFA”) signed in 1977.
In doing so, it incorporates the transfer of provincial lands to Canada to
enable the creation of reserves; that is, it identifies specific parcels of
land set aside as part of the compensation package to be a part of the Norway
House reserve. Although not dealt with in the MIA, the Resource Management Area
is acknowledged to encompass the specific additional parcels of land, as shown
on Exhibit A-4, that are also set aside to be part of the Norway House reserve in
recognition of the federal Crown’s obligations arising from entitlements under
the Treaty, as acknowledged by a document called the Treaty Land Entitlement
Framework.
[43] Schedule 5.1 of
the MIA provides a map of this resource area. It includes the rivers and lakes
and the new "reserve lands".
Under section 5.5.3 of the MIA, Manitoba agrees to grant priority right to Norway House Cree
over wildlife resources that constitute a source of food supply, income-in-kind
and income that fall within the Resource Management Area. The resources covered
by the agreement include the fish.
The circumstances surrounding the development of the MIA support the view that
historical fishing entitlements were critical issues to the Norway House
community in negotiating the agreement.
[44] The selection process for Compensation Lands and TLE Lands is relevant to note.
[45] Areas to be
designated as Compensation Lands were proposed by the province in consultation
with Hydro and required acceptance by Norway House Cree Nation as suitable
Compensation Lands.
The community was then required to request the lands be set aside as reserve lands.
Canada
was obliged to make reasonable efforts to fulfill the request within 12 months.
In anticipation of the transfer of lands, Manitoba is required not to dispose of lands that comprise the
Compensation Lands and must grant a Land Use Permit to the Norway House Cree
Nation on terms agreeable to the community.
[46] Areas designated as TLE Lands totaled 106,434 acres and were, according to the evidence of
Mr. L. Saunders, a witness called by the Appellants who I will introduce
momentarily, areas considered to be within the communities’ traditional
territory. He described the process, in which he was personally involved,
by which the Norway House community participated in selecting these lands. His
uncontradicted testimony was to the effect that the land selections were made
with the purpose of fulfilling economic, social and community development needs
and were selected on the basis that they were lands of historical significance
to the Norway House Cree Nation, including lands traditionally used for fishing.
[47] The Manitoba
Claims Settlement Implementation Act (the "Claims Act") that received Royal Assent
in 2000, recognizes the foregoing understandings. Part I of the Claims Act
relates to the MIA and ensures that the Norway House Cree will have control
over the funds and lands that are granted to them under the MIA. Part II of the
Claims Act addresses the expansion of the reserve land base as was
intended under the Treaty Land Entitlement Framework.
[48] The last government involvement that needs mention is The Natural Resource Transfer Agreement Manitoba.
[49] The Natural Resource Transfer Agreement Manitoba
("NRTA") was enacted to transfer certain rights over resource
management from the Federal Crown to the province of Manitoba. The provision of the NRTA that relates
to Norway House Cree fishing rights is stated in paragraph 13 as follows:
13. In
order to secure to the Indians of the Province the continuance of the supply of
game and fish for their support and subsistence. Canada agrees that the laws
respecting game in force in the Province from time to time shall apply to the
Indians within the boundaries thereof, provided, however, that the said Indians
shall have the right, which the Province hereby assures to them, of hunting,
trapping and fishing game and fish for food at all seasons of the year on all
unoccupied Crown lands and on any other lands to which the said Indians may
have a right of access.
Part 3: Current Fishing
Practises
1. The evidence Mr.
L. Saunders, President of the of Co-op
[50] Both the
testimony of the Appellant and Mr. L. Saunders reflect the sense of pride and
respect that the community has for its fishers and for the vocation they
pursue.
[51] The pride it
seems derives from the community’s own conviction that it is rooted in their
heritage, a heritage that they want so earnestly to preserve and which they
seem to have so much need to protect.
[52] It seems clear
from the evidence and authorities that this need is fostered by Canada; indeed
the honour of the Crown appears to require recognition of this same heritage.
[53] It is clear that
the fishers of this community support their families through the pursuit of
their vocations as their ancestors did even 140 years ago when the small
community of Norway House fishers assisted the Hudson’s Bay Company and the
non-aboriginal fishers employed by that company.
[54] As well, the pursuit of that vocation today is still a
significant part of the community of Norway House. While the community consists of some 5,000 people and only 52 are members of
the Co-op and fish for a living, there are another 160 or so Co-op employees
who are Band members and live on the reserve working in various capacities in
this local enterprise, including staffing the packing stations. While the packing stations
are situated off-reserve, short distances from the fishing camps and the
reserve, they are both on lands designated as future reserves.
[55] As to the importance of this enterprise, I found Mr. L. Saunders to be a knowledgeable and
credible witness. He is the president of the Co-op and has been since January
2009. Prior to 2002, he had served in that office as well, for two and a half
terms of three years each. He resigned in 2002 to become a Band counselor for the
Norway House Cree Nation. He held portfolios that included the Environmental
portfolio which had some responsibility over the land selections under the Treaty
Lands Entitlement process.
[56] Although he was
not an expert on the history of the people of Norway House, he did convey what
I believe to be an accurate sense of what this community believes and
understands to be a true reflection of their history and that is that Norway
House is a community rich in traditional culture that included fishing. Further, his testimony clearly reflected the economic significance
of fishing to the local economy today.
[57] Indeed, he was
quick to observe that fishing was the largest, if not the only, economy of the
reserve other than federal funds and trusts that had been established to
support schools and other programs. Hunting has not stood up as a viable economic
alternative.
[58] He described the
Co-op as the Band’s fishers’ representative, giving the reserve a place in the
industry. The Co-op represents the fishers, ensuring that they are dealt with
honestly and fairly. I accept this evidence. The Co-op certainly plays a roll
well beyond that as acting as an agent or intermediary between the fishers and Freshwater.
Indeed, its main role was to represent the fishers of the community. It
extended the fishers credit for everything from financing boats and fishing
supplies to personal and home shopping needs. It obtained fishing quotas and
was responsible to divide those quotas up amongst its members. On this point,
his testimony was clear: the Co-op was created to help the fishermen. He said,
“We treat our fishermen well.”
[59] As noted above, he
also testified as to his community’s understanding of the framework of the Treaty
Land Entitlement negotiations. They were to address unfulfilled Treaty promises
for further treaty lands. New reserve areas were mapped out and agreed upon on
the basis that, like the Resource Management Area, they were wildlife and fish
areas that had been traditionally available to and used by the Norway House
Cree Nation as a source of food and income. This is also reflected by Article 5
of the MIA in respect of the Compensation Lands.
[60] Mr. L. Saunders testified that the locations of the new
reserve areas include traditional camp sites that are still the camps used
today by the Co-op members and include the areas where the Co-op’s fish packing
stations are located. All such areas are within the Resource Management
Area which he described as an area that was intended to encompass the trap
lines on traditional hunting grounds and also contained or circumscribed
traditional ancestral fishing grounds. Furthermore, he testified that all things required to be done by the
Band in terms of identifying future reserve lands under both the Northern Flood
Agreement and the Treaty Lands Entitlement had been finished. He said that they
were reserve lands in principle and that the only reason for delays in
finalizing their status as reserves related to transmission line easements and
right-of-way easements required by Hydro. The Crown took no issue with this uncorroborated
testimony except to point out that these designated areas were not yet reserves
and that there was no recognized status in respect of these areas that would suggest
that they be treated as reserves in principle.
[61] Still, Mr. L. Saunders maintained that treating these areas and locations as reserves is supported
in the Northern Flood Agreement in Article 15.1 where Manitoba agreed, as a
matter of policy, to grant Norway House Cree Nation first priority rights to
the wildlife resources in the Norway House area traditionally available to and
used by Norway House Cree Nation as a source of food supply, income-in-kind and
income. That Article provides as follows
15.1
Manitoba agrees to grant to the residents of the Reserves
first priority to all the wildlife resources within their Trapline Zones, and
in the rivers and lakes which were traditionally available to and used by them
as a source of food supply, income-in-kind and income ("the Resource
Area").
[62] While Mr. L. Saunders would acknowledge that the lands designated as future reserves require an
official act of government to constitute them as reserves, I sensed that there
was a genuine frustration with the officious and legalistic nature of the
analysis and that it was seen as a betrayal of the spirit of the undertakings
that gave rise to the designation of these future reserve lands. The
undertaking was to bring back to the community, whether by virtue of treaty
entitlement or as compensation for damages, lands that were part of the
traditional heritage of the Norway House people and they should be accepted as
such, at least in principle, and treated accordingly. If the Canada Revenue
Agency did that, it seems unlikely, to me at least, that the assessments at
issue would even have been made.
[63] That is, if most of the camps and the two packing stations were on reserve, then aside
from the historical significance to these sites in respect of traditional
fishing activities, the connection between such expanded reserve area and the
income activity would be such as to obviate any concern over the proper application
of section 87 of the Indian Act.
2.
The evidence of Ronald Robertson, Appellant
[64] The Appellant, Mr. Robertson
acknowledges that he fishes commercially and that he is aware that he is linked
to a commercial chain that markets his catch in what we have called the
commercial mainstream. Nonetheless, he does not think of himself as a business
person conducting business. It is interesting that I might describe my sense of
what he does for a living as both his vocation and avocation.
[65] Although the Agreed Facts set out this Appellant’s
fishing activities, I will review his testimony as to his practices.
[66] As stated, although it was agreed in the
Agreed Facts that the Appellant conducts a business, my view of his testimony
taken as a whole, is that he does not see himself as a businessman. He is
assigned a fishing quota by the Co-op, he fishes, delivers his catch and he
receives a cheque from the Co-op for the fish delivered.
[67] The only
connections he sees with Freshwater is that he knows that they set the price
for the fish, set certain preparation or dressing standards for the fish and
make a final payment to him directly at the end of the year representing his
share of something extra. He knew nothing of the basis for this payment or the
nature of the arrangement that the Co-op has with Freshwater.
[68] From his perspective, his connection to the Co-op on the reserve was an integral part of the
activity in which he was engaged. Indeed, it was the beginning and end of his
commercial world. It not only provided his quota and his pay, but provided his
supplies for fishing such as nets and the like and ice, which was made
available at the packing stations, and other equipment from tubs to pack fish
to gloves. Indeed, as noted earlier, the supplies offered by the Co-op were not
limited to supplies related to his fishing activities.
[69] Indeed, from the evidence of Mr. Robertson, it is
apparent that the Co-op manages the
personal financial affairs of its fishers based on the projected income that
the fisher would earn. It provided pretty much everything
including a credit line for the purchase of a boat and purchase orders to buy
food at grocery stores. Earnings would be applied against the obligations of
the particular fisher in respect of supplies, purchase orders at grocery
stores, loans, credit lines and the like.
[70] Looking more at Mr. Robertson’s fishing activities per
se, the connections to the reserve
are manifest. His home base or his dock is on the reserve beside his residence.
He maintains and stores his equipment there. He is some ten minutes away by
boat to the Co-op, which is also on the reserve and another 40 minutes or so to
his campsites by boat which are off the reserve. He stays at his main camps
four or five days at a time or longer and except when the weather prohibits it,
he travels by boat at least once a day to a packing station which is another 20
minutes away, all in a very small circumference around the reserve; all well
within the Resource Management Area. All but one of the land portions of the areas
he works from are either reserve or on sites that have been earmarked as reserve
lands.
[71] I also note that
Mr. Robertson, as in the case of each Co-op fisher, selected his own helpers
from time to time. They were paid by the Co-op on the reserve and amounts so
paid were deducted from his earnings. This is simply another example of how
integral the Co-op was to the fishing activities of the fishers that go way
beyond being an agent for Freshwater.
3. The evidence of David Bergunder, Director, Field
Operations for Freshwater
[72] The Respondent called Mr. Bergunder to testify as to Freshwater’s view of the arrangement with
the Co-op and the Appellants. He has been with Freshwater for a little over 30
years and is currently the Director of Field Operation for Lake Winnipeg.
He is a liaison between Freshwater, its agents, such as the Co-op, and the
fishermen.
[73] Mr. Bergunder explained that under the Freshwater Fish Marketing Act, Freshwater, a Crown
Corporation, has to buy all legally caught fish offered for sale to it in its
area of operation. However, a licensed commercial fisherman may sell his fish
to anybody in the province. The purpose of Freshwater is to ensure that
fishermen can fish and have an income.
[74] Freshwater
operates through formal contractual arrangements with a number of agents. In
the case of Norway House, there is a contract between Freshwater and the Co-op.
[75] Under the
contract, the Co-op receives a fee for buying fish on behalf of Freshwater. The
fee covers services provided by the Co-op such as packing and administration.
The price of fish is set in the beginning of the year at 85% of what Freshwater
anticipates to be the market price. If at the end of a fiscal year, there is money
left over, it is distributed among the fishers in a final payment.
[76] There are a
number of services the Co-op provides ostensibly to Freshwater. When fishermen
bring fish to a packing station, Co-op staff grade and sort it according to
species and size. They also make sure the fish corresponds to the quality
standard set by Freshwater.
[77] Usually fish is
delivered to Winnipeg within 24-48 hours of it coming out of the water. It
gets loaded onto a barge at a packing station and then trucked from Norway
House south. A truckload, which might include other catches picked up on route
south, can consist of 25-30 containers containing about 1,200 kilograms of fish
worth around $80,000.
[78] Each fisherman
who brings fish gets a receipt at the packing station (a DCR) which indicates
the quantity and the type of fish he brought in on that particular day. Once a
week, the station sends their DCR copies to the Co-op office in Norway House.
The office then takes two or three days to enter this information in its fish purchase
software system and email it to Freshwater. In return, Freshwater emails the
Co-op a Fish Purchase Ticket (FPTs) which show the total amount each fisherman
will get paid for fish for that week.
[79] Freshwater checks
5% of all deliveries for quality. If the fish does not conform to the standard,
the Co-op gets charged a chargeback. Freshwater also checks if there is greater
than 1% discrepancy in the quantity recorded on the shipping invoice and the
quantity actually received. Freshwater pays the Co-op only for the fish it
actually receives.
Freshwater sees that as a reduction in the service fee payable to the Co-op. The
non-payment could also suggest that the Co-op is not Freshwater’s receiving
agent in the sense that the Co-op is not paid for the fish it received from the
fishers for its principal. Any slippage that occurred is not passed on to the
fishermen. That is, the fishermen are paid according to the DCR receipts they
received at the packing stations.
[80] Each week Freshwater
sends one payment to the Co-op and from that payment the Co-op takes its
portion and distributes the rest to the fishermen.
[81] Freshwater could
advance the Co-op a line of credit of up to a maximum of $50,000, as part of
the Corporation’s mandate to supply fishermen with necessary credit. It is up
to the Co-op to distribute amounts among the fishers as it sees fit. Freshwater and the Co-op
would then agree on a repayment plan. Freshwater subtracts whatever amount the
Co-op owes Freshwater, while still ensuring that the Co-op has enough cash to
operate.
[82] Mr. Bergunder
monitors the Co-op’s general ledger (GL), which is a summary of all
transactions that occurred at the Co-op that week. The GL indicates all the
purchases from the fishermen, as well as the amounts that have to be paid for
the fish. Freshwater uses it for cash-monitoring purposes, making sure that the
Co-op always has enough cash to pay the fishers.
[83] Freshwater only
deals with one account of the Co-op. It makes direct transfer payments into
that account. Once a year, as part of an annual review, the Co-op provides
Freshwater with an audited statement of its account.
[84] Mr. Bergunder admitted
although money sent to the Co-op, net of fees payable to it, were intended only
for the fishermen, money was commingled in one account.
[85] When asked if the
fishers could make another agreement with the Co-op concerning their pay, Mr.
Bergunder relied on the agency agreement to insist that weekly pay was one of
the terms of the contract. However, he acknowledged that since the fishermen
owned the Co-op, this was a different type of agency. That seems to be a
concession that the Co-op could make payments as it deemed necessary for the
well-being of its members.
Part 4: Analysis
1. The
Natural Resource Transfer Agreement
[86] The Respondent
argues that the NRTA is evidence that the commercial fishing rights of the
Norway House Cree Nation have been extinguished so that the Appellants no longer have any basis for claiming
to be exempt on the basis of such rights. However, the rights
granted or diminished by the NRTA are of little significance to the present
analysis for two reasons: firstly, the tax exemption at issue is not being
claimed pursuant to entitlements under Treaty Number 5; and secondly, the NRTA
is an agreement between the Crown and the province of Manitoba that is of
little import to the section 87 analysis.
[87] The jurisprudence
is clear that the constriction imposed by the NRTA relates entirely to
commercial hunting and fishing practices that were once promised under the Treaty.
However, the protection being sought in the present Appeals are for properties
that are held Indian qua Indian on a reserve to preserve the traditional
way of life of the Norway House Cree Nation. This protection is not limited to
activities that are protected by Treaty Number 5. That is, there is a basis for
claiming an exemption from taxation for fishing activities whether or not such
a right has been granted under the Treaty and whether or not such a right has
been subsequently extinguished.
[88] Further, although
the NRTA may give rise to certain restrictions on Native practices, the
agreement was made between the federal Crown and the province of
Manitoba. The NRTA has been held to impose obligations and restrictions on the
Province that are not to reflect or encumber the duties of the federal Crown. In
Daniels v. White,
the Supreme Court of Canada confirmed this point at page 542:
It must also be considered that an agreement is not to be construed
as applying to anything beyond its stated scope unless the intention to do so
is unmistakable. Here the purpose of the agreement is stated in its preamble to
be that the Province be placed in a position of equality with the other
provinces with respect to the administration and control of its natural
resources. It is quite consistent with this declared object to provide that
provincial laws respecting the use of some resources, namely fish and game,
shall apply to Indians subject to a restriction the effect of which is to carry
out Canada’s treaty obligations towards the Indians in that respect. …
[89] The NRTA deals
with resource management arrangements between the federal Crown and the
provincial government. It cannot be construed as reflecting dealings between
the Crown and Norway House Cree Nation that relate to entitlements Indian qua
Indian for the purposes of a tax exemption. The NRTA should not be given much
weight in the present case.
2. Section 87; The Erosion of the Entitlement of the Appellants qua
Indians; The Connecting
Factors
[90] Section 87 of
the Indian Act provides as follows:
(1) Notwithstanding any other federal or
provincial law but subject to section 83 and section 5 of the First Nations Fiscal and Statistical Management
Act, the following property is exempt from
taxation:
(a) the right of an Indian or a band in reserve or
surrendered lands;
(b) the personal property of an Indian or a band situated on
a reserve.
(2) No Indian or band is subject to taxation on 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.
[91] To determine under
paragraph 87(1)(b) whether the Norway House Cree fishermen are entitled to a
tax exemption on fishing income requires consideration of the factors that
weigh into a determination of whether or not that income, being the personal
property in question, is found to be held qua Indian on the reserve.
While this might be seen as two tests, the analysis that drives the
determination is the one that focuses on the factors that connect the property
to the reserve in a meaningful way. The connecting factors test was discussed
by the Supreme Court of Canada in Williams v. Canada as follows at paragraph 37:
… The first step is to identify the various
connecting factors which are potentially relevant. These factors should then be
analyzed to determine what weight they should be given in identifying the
location of the property, in light of three considerations: (1) the purpose of
the exemption under the Indian Act; (2) the type of property in
question; and (3) the nature of the taxation of that property. The question
with regard to each connecting factor is therefore what weight should be given
that factor in answering the question whether to tax that form of property
in that manner would amount to the erosion of the entitlement of the Indian qua
Indian on a reserve. [Emphasis
added].
[92] The question to
be answered then is whether a tax on fishing income of Norway House Cree
fishermen would amount to the erosion of the entitlement to that income earned
by the Appellants as Indians qua Indians on the reserve. This is the
starting point of a purposive approach to applying section 87 which the Supreme
Court in Williams directed in paragraph 35:
… it would be dangerous to balance connecting factors in
an abstract manner, divorced from the purpose of the exemption under the Indian
Act. A connecting factor is only relevant in so much as it identifies the
location of the property in question for the purposes of the Indian Act.
[93] Superimposed on
this starting point, is another purposive factor in answering the question posed
that relates to the traditional way of life of a people on a reserve. In Recalma v. Canada,
the Federal Court of Appeal described this part of analysis:
9 In
evaluating the various factors the Court must decide where it "makes the
most sense" to locate the personal property in issue in order to avoid
the "erosion of property held by Indians qua Indians" so
as to protect the traditional Native way of life. It is also important
in assessing the different factors to consider whether the activity generating
the income was "intimately connected to" the Reserve, that is,
an "integral part" of Reserve life, or whether it was more
appropriate to consider it a part of "commercial mainstream".
[94] Similarly, the Federal
Court of Appeal explained in Clarke v. The Minister of National Revenue that a situs test under section 87 is rendered arbitrary without
sufficient and meaningful consideration of the traditional way of life as it
pertains to the entitlements of Indian qua Indian. At paragraph 12
Justice Linden stated:
12 …
Unless the purpose of the legislative provision which imposes the situs
requirement drives the selection of the criteria used to determine the situs
of the property, there is simply no principled basis for selecting one
criterion over another. The analysis must therefore begin by examining
Parliament's intention in enacting section 87 of the Indian Act.
[95] The ultimate question
to be answered in these Appeals then is whether a tax on fishing income of
Norway House Cree fishermen would amount to the erosion of the entitlement to
that income earned by the Appellants as Indians qua Indian on the reserve
so as to undermine the fiscal protection afforded by section 87 to a
traditional way of life that is an integral part of reserve life.
[96] The requirement to consider, and weigh-in, a
traditional way of life allows for a meaningful
consideration of whether the property or entitlement pertains to an entitlement
of an Indian qua Indian. The requirement to consider whether the property
or entitlement is an integral part of reserve life allows for a meaningful
consideration of both whether the property or entitlement pertains to an
entitlement of an Indian qua Indian and whether a property or
entitlement that is off a reserve should be considered to be on the reserve for
the purposes of section 87.
[97] This analytical
approach will ultimately drive the judicial perspective of the connecting
factors that are relevant to determining the situs of the income. Since Williams, the list of
connecting factors that have been considered, has grown as required by the
facts of the variety of cases that have come before the Courts. However, the
factors to be considered and the weight to be given to each, cannot be rigidly
formulated. They have to be applied so as to best answer whether taxing the
subject property amounts to an erosion of an entitlement of the Indian qua Indian on a reserve.
[98] The Supreme Court in Southwind v. Canada (in the context of employment) suggested a fairly long list of
factors that might be considered. I have adapted the expression of the factors
to suit the present case which does not involve employment.
i)
The location of the
business activities;
ii)
The location of the
customers (debtors) of the business;
iii)
Where the decisions
affecting the business are made;
iv)
The type of business
and the nature of work;
v)
The place where the
payment is made;
vi)
The degree to which
the business is in the commercial mainstream;
vii)
The location of a
fixed place of business and the location of the books and records; and
viii)
The residence of the
business owner.
[99] The
factors upon which the Respondent relies relate primarily to the fishing activities
taking place off-reserve; the engager of the work or customer of the business
being Freshwater, an off-reserve non-aboriginal enterprise that pays the
Appellants for fish delivered; and, the degree to which the activity is in the
commercial mainstream.
[100] While I will deal primarily with these factors as if they
may well be determinative of the issue, I must say that even if the impact of those
particular factors, taken alone, favoured a finding that section 87 did not
protect the Appellants from taxation, that would not necessarily dissuade me
from applying the protection of the section’s exemption based on other relevant
factors that beg to be recognized and applied in this case.
[101] Those other factors include the relationship between the
Appellants and the Co-op, a bona fide reserve enterprise, which bears to
how the work was carried on by the Appellants, and the activities’ historical,
cultural and economic connection to the reserve which bears to the nature of
the work being carried on. These factors alone create a compelling connection
to the reserve.
[102] Still, the best starting point of my analysis is, as
indicated, consideration of relevant connecting factors most relied on by the
Respondent. I will consider them under three subheadings:
i) the location of the activities;
ii) the engager of the services and
debtor; and
iii) the commercial mainstream;
i) the location of the activities
[103] The
fact that much of the work is performed at locations away from the reserve is
not of itself determinative of anything. In Nowegijick v. R. income
earned by a member of the Gull
Bay (Ontario) Indian Band
from work done 10 miles away from the reserve in a logging operation of a
corporation all the
directors, members and employees of which lived on the reserve and were status
Indians, was found to be exempt. That the logs may have been sold in markets beyond the reserve
was never an issue. Neither was the fact that there was no apparent historical
connection of the logging site to life on the reserve. In Clarke the
work was done near but not on the reserve, at a hospital which had a
significant historical and cultural connection to the reserve and to the Band.
The Federal Court of Appeal found the precise location of the hospital to be a
less important factor than the historic significance of the hospital in the
life of the Band. In that case the activity, not the site, had historic
significance to the Band (although not historic in the sense of a traditional
activity at the time of a treaty).
[104] In
those cases, the economic and social connection of these off-reserve locations
to the existing reserve and to the lives of a broader group of Band members and
to the reserve community as a whole were the important connecting factors. That
is true of the present Appeals as well. The further connection of the historic
significance of the activity to the reserve and the historic connection of the
off-reserve locations to the reserve (evidenced by their inclusion as future
reserves and by the reasons for being included) give additional support in the
present Appeals to a finding that the income rights derived from those
activities are held qua Indian on the reserve.
[105] Further, considering the future reserve sites as being
off-reserve for the purposes of section 87 in this case, seems overly
restrictive in the first place. It is the obligation of the Crown to ensure the untrammeled enjoyment of such advantages as they
had retained or might acquire pursuant to the fulfillment by the Crown
of its treaty obligations.
… the
protection against attachment ensures that the enforcement of civil judgments
by non-natives will not be allowed to hinder Indians in the untrammelled enjoyment
of such advantages as they had retained or might acquire pursuant to the fulfillment
by the Crown of its treaty obligations.
[Emphasis
added.]
[106] In this case,
advantages are being acquired pursuant to the fulfillment by the Crown of its
treaty obligations. These are the TLE lands. To ignore or trivialize this
virtually crystallized obligation is not warranted, in my view. It focuses on entitlements
existent at the time of the Treaty which gives support to the approach of giving
a current activity relating to such lands on-reserve recognition.
[107] As well, it must be recognized that much of the work in
the present Appeals could
only be done away from the reserve because that is where the fish were. Waterways
are not part of reserves. The reserve itself is a residential community that affords
nothing more than a connection by river to fishing locations off-reserve, the
same way it would have to have done 140 years ago. Unquestionably, the assessment of the connection
of a fishery to a reserve should include consideration of its proximity and
historical usage. The off-reserve locations, even without recognition of their being future
reserve sites, have been recognized as part of the Resource Management Area
which connects those locations as closely to being on the reserve, without
actually being on the reserve, as one could imagine for the purposes of the
connecting factors analysis. The
fishing camps and packing stations in question are short commutes from the
on-reserve docks of both Appellants. Co-op employees at the packing stations are
status Indians living on the reserve as are the Appellants’ helpers. The
activity is administered on the reserve, supplies are stored and acquired
there, while boats, motors, nets and other tools of the trade are kept and
maintained there, as well.
[108] Similarly, books and records are largely maintained by
the Co-op on behalf of its members, again centering a relevant aspect of the
activity on the reserve in a genuine and material way.
[109] As well, I note my impression that the few business
decisions left to the fishers likely take place as much, if not more on-reserve
than off; decisions such as, for example, buying new equipment. Even every day
decisions, such as when and where to fish, appear to be made as much on reserve
as off, in the sense of when a fisher starts out the morning from his on-reserve
dock, he has pretty much made up his mind as to which camp he is heading.
[110] These
connections to the reserve tend to favour, in my view, a finding that the
income earned was earned qua Indian on the reserve and warrants
protection from diminution by taxation. That is, advancing
the protection sought is not to give the Appellants an advantage in the world
beyond the reserve. It is an advantage that exits on the reserve that has to be
considered as extending to the nearby waterways traditionally used for fishing as a
source of income and income-in-kind.
ii) the engager of the services and
debtor
[111] The pure contractual arrangements, whereby Freshwater via
its agency arrangement with the Co-op is the engager of the Appellants’ contractor
services and the debtor in relation to the income in question, supports a finding that such property is not on the
reserve. This narrow legalistic approach, however, is not warranted, in my view,
in this case. Freshwater
appears to have no ability or
right to deal with the members of the Co-op, which hardly seems typical of a
principal. Nor does the Co-op having to suffer the cost of substandard fish or
delivery shortages seem typical of an agent.
Further, there is no fisher/creditor owed money by Freshwater in relation to
any Co-op member except to the extent that the Co-op, an on-reserve institution
managing and administering a reserve activity through quotas held by it,
creates that relationship. Controlling the quotas controls the income. That is,
it controls the property in question from inception and in that sense can
readily be seen as controlling the location of the property in question for the
purposes of the Indian Act.
[112] The Co-op
is not there to deal with Freshwater’s contractors on Freshwater’s behalf. It
is there to represent its members qua Indian and, in effect, it negotiates
on behalf of its members with Freshwater as to who Freshwater deals with, to
what extent and on what terms.
That is, in the context of determining the situs of such intangible
property as the income from the subject fishing activity for the purposes of
the Indian Act, this perspective of the arrangement is far more
compelling, in my view, than a pure legalistic approach of who the debtor might
be.
[113] Indeed, there are
two pure legalistic aspects to the Respondent’s
position that are argued to drive the analysis away from the application
of the section 87 exemption. Neither is helpful in terms of identifying how the
activity itself should be treated given the purpose of the exemption. This can
readily be seen by looking at how changing the legal structure impacts the
analysis. One legalistic aspect is that the Co-op is the agent of Freshwater.
If the contract had been structured differently so the Co-op bought the fish
from its members and then sold them to Freshwater, the case would take on a
different complexion. What if the Co-op employed its fishers? These legal
notions that exist only in the fictional world of law cannot drive the
determination of the fishers’ right to have a traditional source of reserve
income undiminished by taxation. The second legalistic aspect of the
Respondents’ position, in identifying a traditional way of life, or the
commerciality of an activity, is the reliance on the designation of “employed”
fishers between 1847 and 1875. If the consideration aboriginal fishers received
as employees had been paid under a contract for services as opposed to a
contract of service would there be more commerciality to the historical
assistance provided? At some point it is nonsense to try to draw useful
conclusions about a traditional source of income in another time and in another
world from legalistic distinctions that are themselves, even today, being
litigated on a regular basis. As stated in Clarke, legal fictions become
arbitrary and misdirect the analysis. They take the analysis of the purpose of
the exemption away from Parliament’s intentions which cannot be found to be
satisfied in the legalistic formulations of relationships.
[114] In Clarke, at
paragraph 12 Justice Linden stated:
12 Underlying
Gonthier J.'s criticism of the residence of the debtor test is the recognition
that attributing a situs to a chose in action such as the right to
employment income is, by definition, a notional exercise. It is a legal fiction
which, in the context of section 87, is designed to limit the breadth of the
tax exemption provision. To recognize it as a legal fiction is not to criticize
it; legal fictions often serve useful purposes in our law. However, once the
fictional nature of the exercise is rendered explicit, it can be seen that
reliance on a test for situs which is unconnected to the purpose for the
tax exemption provision -- whether it be the residence of the debtor or the
place where the wages are received -- inevitably becomes arbitrary in its
application. The solution, as will be seen, lies in an approach to the
interpretation and application of the phrase "situated on the
reserve" which is founded on the purpose of the exemption provision in the
Indian Act. Unless the purpose of the legislative provision which
imposes the situs requirement drives the selection of the criteria used
to determine the situs of the property, there is simply no principled
basis for selecting one criterion over another. The analysis must therefore
begin by examining Parliament's intention in enacting section 87 of the Indian
Act.
[115] Ignoring the legalistic formulations here, the better
view of the activity, guided by the purpose of the section 87, is that the engager
of the fishing services and the debtor in respect of those services is the
Co-op.
[116] More weight supporting this finding is the fact that the place at which the employees are paid
is on reserve. The money
received by the Appellants are Co-op cheques from commingled funds managed on
their behalf for their benefit. A legal formality that suggests funds are held
and applied by the Co-op as an agent of Freshwater pales to the practical
realities here. These are not
artificial or superficial connections arranged as supporting tax planned
indicia of on-reserve situs. The economic lives of the Appellants
on-reserve is administered on the reserve in a very real and genuine sense by
the Co-op based on the income produced by the subject activity. This helps answer the underlying question of
whether taxation of this income would adversely affect the property interest of
the Appellants qua Indian on the reserve. The heart of this arrangement
is not to confer an economic benefit not available to others. It is to protect
and administer the property interest of the Appellants earned and held qua
Indian on the reserve.
iii) the commercial mainstream
[117] As a
preliminary comment, I share the discomfort expressed by counsel for the
Appellants and for the Crown that all businesses run by aboriginal people should
be found to be outside Canada's "commercial mainstream" simply
because of some attachments to a reserve. On the other hand, in seeking
clarification of the proper interpretation of this term, I am guided by the
words of Linden, J.A. in Recalma v. R. where he confirmed that the section 87 analysis should not
overemphasize the "commercial mainstream" test. At paragraph 9 he noted:
… We should
indicate that the concept of "commercial mainstream" is not a test
for determining whether property is situated on a reserve; it is merely an aid
to be used in evaluating the various factors being considered. It is by no
means determinative. The primary reasoning exercise is to decide, looking at
all the connecting factors and keeping in mind the purpose of the section,
where the property is situated, that is, whether the income earned was
"integral to the life of the Reserve", whether it was
"intimately connected" to that life, and whether it should be
protected to prevent the erosion of the property held by Natives qua Natives.
[118] In another part of the judgment he expressed the same
view slightly differently:
9 …
It is also important in assessing the different factors to consider whether the
activity generating the income was "intimately connected to" the
Reserve, that is, an "integral part" of Reserve life, or whether
it was more appropriate to consider it a part of "commercial
mainstream" activity.[45]
[Emphasis added.]
[119] The first passage looks at the connection of the activity
to the life on the reserve as if that could prevail as a governing factor even
if the activity is in the commercial mainstream. The second passage introduces an “or” which suggests that an activity cannot
be both an integral part of life on the reserve and be in the commercial
mainstream. I cannot
accept that these two aspects were meant to be mutually exclusive in all cases.
The test is to find whether the activity being part of the commercial
mainstream is the dominant aspect of its being undertaken with its contribution
to community life being incidental or contrived. Viewing the test in this way
permits the historical significance of the activity to life on the reserve to weigh-in
as a relevant factor in helping to assess the dominant aspect of the activity.
[120] I do not understand how it can be said, in this case,
that it is anything other than external forces that have appeared to elevate
fishing at the time of the Treaty from a means of providing a livelihood to a commercial
mainstream business in less than 10 years. What difference is there between the
Hudson’s Bay Company engaging a community of Native fishers to help meet its
demands for fish, small as their contribution might be, and Freshwater engaging
the services of the same community of fishers, whether its 10 years or 140
years later, to meet its demands, large as they may be? The degree of
commerciality introduced by a purchaser such as Freshwater is fortuitous but
irrelevant.
[121] As well, I note fluctuations in market demands or in the
scale or relative scale of demands on a community, which are external, cannot
be determinative of a finding of commerciality for the purposes of section 87. I
do not see that relative contributions to a commercial market should be a
factor in assessing the connection of an activity to a reserve but if it were, how
would that apply here? It might be said that the ability of the Native fishers at
Norway House today to meet the world market needs of their commercial purchaser,
Freshwater, are as limited as they were in the 1800s to meet the needs of its
commercial purchaser, the Hudson’s Bay Company. The evidence has not satisfied me
that anything has changed.
[122] Such a reasoning exercise allows for a finding that an historical tradition of fishing, in traditional
waters, around a reserve, as a means of earning a livelihood could suffer a
significant degree of commerciality in today’s world without being found to be
a disconnecting factor of any importance relative to other factors. In any
event as I have noted, in the case at bar, the commercial aspect of the
Appellants’ fishing activity arises incidentally and fortuitously out of
circumstances that do not vitiate the connection to the reserve that arises from
a traditional pursuit that historically has been, and presently is, an integral
part of reserve life.
[123] Before moving on, it seems necessary for me to comment
further on the relevance of historical differences as to the degree of
commerciality of an activity compared to today. The way these Appeals have been
approached has added a different dimension to the purposive application of
section 87. It has, in my view, put more emphasis on the existence of a similar
historical activity as a means determining what is intimately connected to a
reserve today “qua Indian”. The more distant the activity from a
traditional one, the more integral to present day life on the reserve it has to
be otherwise it cannot be “qua Indian”. The question then becomes
comparative: “how similar” does the current activity have to be to that carried
on at the time of entering into a treaty? That ultimately was the question the
experts were engaged to answer in an adversarial context as if it was
determinative of the issue before me.
[124] However, having said that, as must be clear by now, I am
not of the view that this needs to form the basis for my decision to allow the
Appeals. I do not believe the spirit and purpose of section 87 is well-served
by examining an activity under a microscope so as to find arguably relevant
differences between degrees of commerciality over time. That the world has
grown so global markets are now available for fish for food should not
prejudice or diminish the importance of fishing to aboriginal life on the reserve
compared to when fish were used to feed Hudson’s Bay Company workers. The pursuit of one’s avocation/vocation for
hunting and fishing that allowed for a synergistic existence, an economic
co-existence, with the Hudson’s Bay
Company was integral to life on the post qua Indian. That the Appellants
can pursue such traditional income source in the same waters around the reserve
and derive economic benefit in a setting that is integral to life on the reserve
today is more than sufficient in this case. Where the connecting factors,
uninfluenced by commercial mainstream considerations, support a finding that
the income earned was intimately connected to reserve life, those
considerations should not be frustrated by the fact that the outside world has
a commercial use for the activity that generated the income. The income derived
from those activities is property
deeply linked to the life on the reserve and has been earned qua Indian for the
purposes of section 87.
[125] Thus far, I have focused on the view that the
connection to the commercial mainstream is these Appeals is not determinative
or even harmful to the Appellants’ right to section 87 protection. That may
suggest that I am satisfied that they are working in the commercial mainstream.
In fact, I am not satisfied of that at all.
[126] That the Co-op has entered the commercial mainstream does
not necessarily mean its members have done so. Indeed, I believe the evidence
supports a finding that the Co-op has insulated its members from being viewed
as a part of that mainstream. The Appellants made no conscious decision to be
engaged by Freshwater. They fished for a local enterprise that paid them and
had only a vague notion of, or little interest in, the market beyond other than
it was there as a market for the Co-op.
[127] In Williams, the Supreme Court said in paragraph
18:
18 Therefore, under the Indian Act, an
Indian has a choice with regard to his personal property. The Indian may
situate this property on the reserve, in which case it is within the protected
area and free from seizure and taxation, or the Indian may situate this
property off the reserve, in which case it is outside the protected area, and
more fully available for ordinary commercial purposes in society. Whether the
Indian wishes to remain within the protected reserve system or integrate more
fully into the larger commercial world is a choice left to the Indian.
[128] The Federal Court of Appeal reiterated the choice aspect
of the commercial mainstream as it applies to employment income in Clarke
in paragraph 14 by saying:
Where, therefore, an aboriginal person chooses to
enter Canada's
so-called "commercial mainstream",
there is no legislative basis for exempting that person from income tax on his
or her employment income. [Emphasis added.]
[129] In the present
case, the Appellants did not choose to enter the commercial mainstream. They
know little of this outside connection that Freshwater brings. A legal hook
that snared them as parties to a contract with Freshwater cannot be relied on
without the government of Canada turning a very blind eye to its obligation to protect
a traditional income source from diminution carried out by innocent fishers
doing what their traditional lands and waters have always allowed their people
to do. That rings especially true given that they are fishing from camps and
delivering catches at locations designated for reserve status in recognition of
their historical connection to their traditional livelihoods. That does not
persuade me to find that the Appellants chose to be in the commercial
mainstream at all. They chose to pursue a traditional livelihood at the same locations
such livelihoods were pursued by the aboriginal people of Norway House 140
years ago.
[130] In broader terms,
aside from the influences of the new reserve entitlements, I come to this
conclusion on the basis that the income is sufficiently connected in so many
respects to the reserve to be treated as property “on the reserve”. If the
income is “on the reserve”, it is not property “outside lands reserved for
their use” and therefore it cannot be regarded, again in the context of the
required legal analysis, as part of the commercial mainstream to be treated as
it is treated for others. Indeed, as property held on the reserve it cannot be
dealt with on the same basis as applicable to others. As said in Mitchell v. Peguis
Indian Band at paragraph 88:
… that
Indians who acquire and deal in property outside lands reserved for their
use, deal with it on the same basis as all other Canadians. [Emphasis
added.]
That
is, advancing the protection sought does not require property, which is
sufficiently connected to the reserve to be considered on the reserve, to be
dealt with on the same basis as all other Canadians.
[131] As well, in Southwind,
Linden, J. of the Federal Court of Appeal noted:
14 According
to the Supreme Court in Mitchell, where an Indian enters into the "commercial
mainstream", he must do so on the same terms as other Canadians with whom he
competes. Although the precise meaning of this phrase is far from clear, it is clear
that it seeks to differentiate those Native business activities that deal with
people mainly off the Reserve, not on it. It seeks to isolate those business
activities that benefit the individual Native rather than his
community as a whole, recognizing, of course, as Mr. Nadjiwan says, that a
person benefits his or her community by earning a living for his family.
[132] In the present Appeals
the activities do not deal mainly with people off the reserve. The activities
deal mainly with the Co-op on the reserve benefiting the community as a whole.
[133] All this is to say, I
give no weight to the commercial mainstream arguments advanced by the
Respondent.
3. Distinguishing authorities relied on by
the Respondent
[134] I need not review all the cases relied on by the
Respondent. However, I cannot ignore the three that are on their facts most damaging
to the Appellants’ position in the present Appeals. These are Southwind,
Bell v. R.
and Ballantyne v.
Canada.
i) Southwind
[135] The
appellant in that case resided on the Sagamok Indian reserve. He was the sole
proprietor of a logging business which provided exclusive logging services to a
non-aboriginal business which is not situated on a reserve. The appellant was
paid for the logging work which he performed at off-reserve cutting locations.
During the time when he was logging, the appellant would often remain at the
cutting location, returning home to the reserve on the weekends. Administrative
work connected to the business, including answering and making telephone calls,
what bookkeeping was needed, and storage of business receipts occurred at the appellant's
home on the Sagamok reserve. The appellant owned his own equipment which, when
it is not being used at a logging site, was stored at his home on the Sagamok reserve.
Finally, the appellant was paid by cheque drawn on the off-reserve bank account
of the debtor.
[136] Clearly, there are strong similarities between that case
and the present Appeals. However, the following distinguishes that case from the
present appeals: the role of the Co-op in the present appeal; the historical
connection of the activity to life on the reserve; and the part the activity
played in community life on the reserve in the years in question.
[137] At paragraph 16 a comparison is made
between Southwind and Nowegijick. Nowegijick
was different because the employer in that case was a corporation based on the
reserve, while in Southwind the appellant was an unincorporated sole
proprietor of his own business who sold his services exclusively to a customer
that was off the reserve. In the case at bar, ignoring the legal fictions of
who the Co-op represented, the Appellants provided their services under the exclusive
umbrella of an enterprise administering them as an integral part of an
on-reserve activity for the benefit of a much larger part of that community.
ii) Bell
[138] Unlike a case like Bell, there
is evidentiary basis in the Appeals at bar for finding that there is a sound basis
for protecting the income derived from that activity from taxation.
[139] In Bell
the nature of the employment, which I will refer to as the activity, and the
manner in which it was carried out, were found to be the most important factors
bearing upon the result. It had notable similarities with the case at bar. It
was considered relevant that business was not carried on in a way that was
different from fishing companies that were owned and operated by non-aboriginal
interests. The fishing activity was a commercial activity, pure and simple. The
catch was sold to a processor which was a subsidiary of a large national food
processing firm and thereby entered directly into the mainstream of commerce,
indistinguishable from the catches of any of the other fishing companies,
aboriginal-owned or non-aboriginal-owned, which became a part of the Canadian
food supply.
[140] However, even in that case, the historical connection of the activity to
the reserve may have sufficed to obviate the concern for its competitive
commerciality had the evidentiary burden to establish it been met. At paragraph
38, Justice Bowie of the Tax Court of Canada remarked:
… The food fishery no doubt has its roots in the traditions
of the coastal Indian people, although there is scant evidence of that
before me in this case. If income were to derive from this food fishery, then
perhaps a sound argument could be made for the exemption of that income
pursuant to paragraph 87(1)(b), provided that a proper evidentiary base were
laid. That is not the case here, however. It is clear from the evidence that
none of the income to which these appeals relate, nor any income whatsoever, is
derived by the Appellants or the company from their food fishing activities. …
[141] In the case at bar, there is no question that the subject
income derives from fishing activities and fisheries that have their roots in
the traditions of the Upland Cree. The evidentiary base for this distinction
has been well laid. That non-aboriginal activities might be indistinguishable
should not be a bar to continuing to protect aboriginal people from the erosion
of income traditionally earned qua Indian.
iii) Ballantyne
[142] As in the case at bar, this case dealt with Treaty 5 and
with personal property that was income from fishing. It concerned a different
Band but the structure of the activity was not dissimilar. The fishers were
members of an on- reserve co-operative and fished in waters outside of the
reserve. The fish were bought by Freshwater. Justice Webb found the latter
fact, which brought the fishers into the economic mainstream, of such relevance,
that together with other factors that did not sufficiently connect the income
source to the reserve, reason to conclude that the section 87 exemption did not
apply.
[143] Perhaps the easiest and fairest way to distinguish
this case from the Appeals at bar, is simply to point out that we were faced
with two very different cases in terms of the evidence presented and the
arguments made. Judges and litigants are, perhaps too often, at the mercy of
what is brought to Court. For example, the expert evidence might have been
given or received in a different light. As well, it is unclear in Ballantyne
what interaction there was with the Hudson’s Bay Company. If the reserve in that case were a trading post, which I
do not understand it to have been, the evidence and arguments as to the
significance of the relationships that would flow from that historical fact
would not have been before the Court to consider. I had such evidence to
consider. While I am not suggesting, nor am I convinced, that these differences
alone should distinguish the cases, they are worthy of note.
[144] There is however one point that deserves comment. At
paragraph 14 Justice Webb remarked:
As well, since “‘commercial mainstream’ is to be contrasted
with ‘integral to the life of a Reserve’”, it seems to me that an activity, for
the purposes of section 87 of the Indian Act, cannot, at the same time,
be both in the “commercial mainstream” and “integral to the life of a Reserve”.
[145] With respect, I have a different view based on the
evidence and arguments presented in the Appeals before me. As I have already
stated, the two factual scenarios posed need not be mutually exclusive in all
cases. For example, immersion in the commercial mainstream can be fortuitous
and incidental to what is integral to life on a reserve. Both scenarios exist
in that example. The integral to life on a reserve finding might prevail in
such a case. In another example, it might be possible to disconnect an activity
from the commercial mainstream. That an external market comes to the reserve
and buys the fruit of an activity (commercial in nature or not) that has
existed traditionally, independently of that particular market at that
particular time, does not mean the activity is “in” that external commercial
mainstream. In that sense, the two scenarios might not be viewed as mutually
exclusive. In any event, external factors should not prejudice the right to
have a property interest undiminished
by taxation when earned qua Indian as part of the customary way of life
on the reserve.
4. Subsection 87(2)
[146] Subsection 87(2) provides as follows:
(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.
[147] The parties have not referred me to this subsection.
Indeed there appears to be little reference to it in the authorities. Without
asking for further submissions on it, it would be inappropriate for me to
inflate its significance in deciding the Appeals. Still, it can be noted that
87(2) can be read to say: no Indian shall be taxed in the respect of the
use of his boats and nets or otherwise be subject to tax in respect
of any such property. The lesson learned in Nowegijick is that the
words “in respect of” must be given a broad interpretation. With that in mind, if
inserting the property in question here as being the boats and nets used by the
Appellants in deriving their income, then the Appellants have yet another basis
to claim the exemption under section 87.
[148] The question then comes down to whether the boats and
nets are the personal
property of an aboriginal person situated on a reserve as per paragraph
87(1)(b). Putting the
question this way, does not expressly invite an enquiry as to where the boats
and nets are used. However, its relevancy returns in making the determination
in the first instance as to whether or not the boats are “situated” on a reserve.
[149] Locating a property on a reserve does not require that it
be used exclusively on the reserve. Instead,
one needs to look at the “paramount location” of the property. Justice La Forest in Mitchell said:
… [W]hen considering whether tangible
personal property owned by Indians can benefit from the exemption from taxation
provided for in s. 87, it will be appropriate to examine the pattern of use and
safekeeping of the property in order to determine if the paramount location of
the property is indeed situated on the reserve. … But I would reiterate that in
the absence of a discernible nexus between the property concerned and the
occupancy of reserve lands by the owner of that property, the protections and
privileges of ss. 87 and 89 have no application.
[150] A clear case can be made that there is a discernible
nexus between the boats and nets and the occupancy of reserve lands and the
income they enable by their use off the reserve. However, that would not be
sufficient in determining the location of their paramount use.
[151] The paramount
location test was applied in Kingsclear Indian Band v. J.E. Brooks and Associates Ltd:
As I
understand the evidence, the bus was used to transport Indian children from the
Kingsclear Reserve to schools outside the reserve and to return them at the end
of the school day. Although not precisely established by the evidence, I would
infer that the school
bus was parked on the reserve lands overnight and when not
employed in transporting children. Even without the latter inference, the
evidence as to the pattern of use of the school bus together
with the discernible nexus between the bus and the Kingsclear Reserve in the
provision of education to Indian children residing on the reserve, in my
opinion establishes that the "paramount location" of the school bus
was on the Kingsclear Reserve.
[152] Keeping in mind, as well, that the use of the boats and
nets is off-reserve only because that is the only place they could be used,
being where the fish were, the decision in Kingsclear gives some
strength to an approach that encourages an exemption under subsection 87(2).
5. Section 35
[154] Still, I am sympathetic to the argument urged on me by the
Appellants. The authorities, however, are less sympathetic. Further, even if I
were to accept that there is room in these
Appeals to conclude that there was sufficient evidence to
allow a finding that the activity in question was part of a tradition that was
integral to the distinctive pre-contract culture of the Norway House Cree,
there is the issue of continuity. Also, precious little has been said as to why I should
accept taxation as constituting an unjustified infringement of such protected
right if it exited. In any event, it is not necessary for me make a finding
as to the application of section 35.
Part 5. Conclusions
[155] In the introduction to these Reasons, I noted
the importance of the historical evidence in my analysis of the application of
the section 87 exemption. It deserves repeating that its importance was two
fold. Both concern the application of the connecting factors test. It is
necessary when applying that test to consider historical factors to determine
the need to apply the exemption to prevent “the erosion of property held by
Indians qua Indians so as to protect the traditional native way of
life”.
Historical factors can also defuse the argument that when the activity enters
the commercial mainstream, it should not be treated differently than in the
case of non-aboriginal competitors. The historical evidence establishes that
the livelihood derived from the pursuit of their vocations/avocations, which
include fishing, have always been a part of the traditional way of life of the aboriginal
people of Norway House. The fact that the outside world rewards such pursuits
in a modern commercial context, is no reason to diminish the fruit of that
tradition by taxation.
[156] There is no slippery slope here that should cause concern
over allowing this enterprise to enjoy the benefit of section 87. Enjoying the
benefit of a market for a local resource, particularly a resource that has a
historical tradition of providing a livelihood for the aboriginal persons
concerned, has little potential for abuse.
[157] It seems almost trite to say that the nature of the
endeavour in these Appeals is not a newly contrived strategy employed to seize
a modern world economic opportunity on a tax advantaged playing field. What
advantage over competitors is gained by affording the Appellants protection
from taxation under section 87? Quotas and prices are controlled. Even if there
were an advantage, the right to protection from taxation would still derive, in
this case, from the pursuit of a recognized trade, the nature of which attaches
to the Appellants as aboriginal people on the reserve. Such attachment has been
overwhelmingly established by the connecting factor analysis set out in these
Reasons.
[158] As well as the connecting factors expressly listed and
covered earlier in these Reasons, that analysis inherently included
consideration of the manner in which activity was carried out. It was
administered and controlled by the Co-op, a bona-fide enterprise set up
so that the fishers are able to earn a living by traditional means. The Co-op
is a genuine reserve enterprise, serving and benefiting the reserve community.
Indeed, as already mentioned, its business is the largest economic contributor
to the life on the reserve besides funds provided by the federal government.
Evaluating the activity’s impact on the community is of considerable importance
and weighs heavily in the analysis. The Appellants fall under the umbrella of
this enterprise for the purposes of the application of section 87.
[159] As well, that analysis, the connecting factors analysis,
inherently included consideration of the nature of the work done by the Appellants.
The nature of the work, fishing, was recognized by Treaty 5 as being important
to the livelihood of the Norway House Cree Nation at the time of the creation of
the reserve. What more need be said? Coupled with the manner it is administered
and controlled to benefit the community, this becomes part of an abundance of compelling
connecting factors that have eclipsed any concerns that may have arisen in the
face of the commercial mainstream factor relied on so heavily by the
Respondent.
[160] Further still, that
analysis has relied on recognizing that protecting
the economic base of life on a reserve is one of the main goals of the section
87 tax exemption. In Shilling v. The Minister of National Revenue, the Federal Court
of Appeal relied on the Supreme Court decision of Mitchell to confirm
that section 87 was "designed to protect Indians in various ways from the
erosion of their economic base, namely reserve lands and personal property
there belonging to an Indian".
[161] It has been established on the evidence, that taxing the
Appellants would be an erosion of an important economic base that goes far beyond
the emergence of an income source brought to the reserve by the outside world
of commerce. It is a source that was always there and its present connections are
not trappings. The connections to the reserve are genuine and historically
based. As such, the subject income warrants protection from diminution by
taxation.
[162] When I stress the importance of genuine historical
connections to the reserve, I cannot help but comment on my reaction that to
apply the commercial mainstream test too rigorously, would be to exaggerate its
importance in this case. Its true value is best revealed in cases such as Recalma
where efforts to avail a reserve community of an economic mainstream that
existed essentially only beyond the reserve in a financial world that had no
connection to the heritage of the people of the reserve, was doomed to fail. It
is a step backward, in my view, to apply that analysis to the fishermen of
Norway House who earn income in respect of a local ancestral economy.
[163] Balancing the connecting factors will inevitably require assessing
the weight to be given to each factor. To the extent that it can be said that
the balance of the factors that I have found favour locating the income in
question on the reserve do not tip the scale as much as I have suggested, I can
only add that in such a case I would err in favour of the Appellants. Section
87 should be given a broad construction where, in a case such as this, to do so
avoids the risk that government will appear to be using legalistic formulations
to erode protected pursuits of the aboriginal people of Canada. In Nowegijick
the Supreme Court said at paragraph 25:
It is legal
lore that, to be valid, exemptions to tax laws should be clearly expressed. It
seems to me, however, that treaties and statutes relating to Indians should be
liberally construed and doubtful expressions resolved in favour of the Indian.
If the statute contains language which can reasonably be construed to confer
tax exemption that construction, in my view, is to be favoured over a more
technical construction which might be available to deny exemption.
[164] Lastly, I note that I
find that the connecting factors here of the most importance do not allow for a
distinction to be made in respect of any Band member, such as Roger Saunders,
who chooses to live in the Norway House community, who is a member of the
Co-op, whose fishing base is on the reserve and whose fishing activities are
virtually the same as Mr. Robertson’s, simply because he chooses to reside in a
home in the community that is not on the reserve per se. Residing on the
reserve is only one connecting factor.
In the case at bar, the absence of such connection is of no consequence.
[165] Accordingly, and for
all these Reasons, the appeals are allowed with costs.
Signed at Winnipeg, Manitoba this 29th
day of October 2010.
"J.E. Hershfield"
Schedule 3
Expert Reports
A. Dr Lytwyn’s report entitled “Report on the
Aboriginal Commercial Fishery in the Norway House District Before Treaty #5
(1875)” was filed by the Appellants’ counsel.
Curriculum Vitae
(C.V. in brief)
1.
Dr. Lytwyn completed
his Masters Degree (1981) and his Ph.D (1993) at the University of Manitoba. His Doctoral dissertation was “The Hudson Bay
Lowland Cree in the Fur Trade to 1821: A Study in Historical Geography.”
2.
He has published 2
books and contributed, as author or co-author, to 15 chapters in other academic
publications on various historical aspects of aboriginal life at various times
and various locations.
3.
His works clearly
incorporated research into various aspects of aboriginal life including hunting
and fishing. His published research relating to fishing activities are not
specific to the fishing activities of the Upland Cree, the ancestors of the
people of the Norway House Band today, but includes research in the Rainy River
area (Ojibway fisheries southeast of Norway House in Manitoba and Ontario) and
aboriginal fishing in the Great Lakes Region, including the Saugeen Nation’s
fishing islands in Lake Huron.
4.
Needless to say, this
does not do justice to his 10 page C.V. that included 44 conference papers, 10
of which were delivered within the last 5 years and many of which focused on
the place of the Hudson’s Bay Company in the history of aboriginal
people in northwestern Ontario and Manitoba.
Qualifying Dr.
Lytwyn as an Expert
1.
Counsel for the
Appellants proposed to qualify Dr. Lytwyn as “an historical geographer expert
involving treaty and aboriginal fishing rights and fur trade history of aboriginal
people, including the historical sources and in particular the Hudson’s Bay archives”.
2.
Respondent’s counsel
objected to qualifying Dr. Lytwyn as an expert on Hudson’s
Bay Company’s archives and on aboriginal fishing rights.
3.
I am satisfied with
Dr. Lytwyn’s credentials to qualify him as requested by the Appellants, except
that I would not agree that he should be described as an expert on aboriginal
fishing “rights”, historical or otherwise. I do qualify him as requested except
then to replace “aboriginal fishing rights” with “historical aboriginal fishing
practises”. His Doctoral work alone qualifies him for that acceptance in
respect of his ability to draw meaningful and reliable opinions from Hudson’s Bay Company records to which he has impressive
ready access. That he has authored academic works on aboriginal fishing only
reflects his ability to do such work and supports my qualifying him as being
able to give an expert opinion on that subject, even in areas other than the
ones he has written on. Admittedly, areas he has written on no doubt reflect
more peer reviewable research than might be evident in the opinions expressed
in his report, but that alone does not devalue his expertise to provide a
reliable expert opinion.
The Report
1. The Hudson’s Bay
Company (sometimes referred to in this Schedule as “HBC”) trading post at
Norway House was located at its present location in 1826 as it was well suited
as a transhipment post for goods moving to and from York Factory on Hudson’s
Bay and because it was near a fishery which was the main source of its food
supply. Prior locations, the first being built in 1796, were not pinpointed
exactly.
2. The importance of
Norway House as a transportation hub or trans-shipment post made it one of the
principal establishments of the HBC. It served as an inland depot for European
goods arriving at York Factory and goods destined for Europe
leaving from York Factory.
3. The HBC depended on
fish to feed its employees at Norway House, as well as the incoming and
outgoing boat brigades. The HBC employed full-time non-aboriginal fishermen as
well as local aboriginal people. Non-employed aboriginal people also fished in
the area and often sold their catch to the HBC at the post. This was a
necessary supplement to the operation of the post. The sturgeon fishery was
especially important as a commercial enterprise to the aboriginal people in the
area. Sturgeon flesh, whether fresh or dry, provided a trade item that was
purchased by the HBC. Sturgeon oil was purchased as a fuel for lamps and as a
seasoning for dried fish. Sturgeon swim bladders were processed by the
aboriginal people into a substance called isinglass that was purchased by the
HBC.
4. Even prior to the
establishment of the post at Norway House there is evidence that there were
significant purchases by York Factory traders of sturgeon from Upland Indians
which included the Upland Cree of the Norway House district. While the location
of the fisheries that produced the sturgeon that were sold at York Factory in
the 18th century cannot be precisely determined from available
records, Dr. Lytwyn suggested that it was likely that some were obtained in the
Northern Lake Winnipeg area around Norway House. Early HBC explorers who
visited the Norway House area made note of the sturgeon fishery there.
5. The abundance of
fisheries in the lakes near Norway House prior to the entry into the Treaty is
very well documented. For example, Robert Hood, who accompanied John Franklin
on his artic expedition, wrote from Norway House in 1819, “The Playgreen Lake
is stalked with fine fish particularly Sturgeon which are not found in the
rivers to the eastward of the painted stone nor in those to the northward of
the frog portage.”
6. Dr. Lytwyn’s Report
cites many examples of HBC journal entries evidencing commercial exchanges of fish
at Norway House with aboriginal people. Dr. Lytwyn expresses the opinion that the
HBC, in addition to having fish supplies from its employed fishermen, also
would have had to have purchased fish from aboriginal people to supplement the
food required to operate the post and provision the boat brigades. He also
noted trades in sturgeon oil, sturgeon flesh and isinglass.
7. Isinglass was in
demand in Europe in the 19th century. It had
been used traditionally by the Cree as glue and as a binding agent for paint.
The HBC valued isinglass because it could be resold on the European markets for
profit. In Europe, it was used in manufacturing a wide range of products before
the advent of synthetic compounds derived from petrochemicals.
8. Reported isinglass
trade at Norway House began in 1812 and purchase records are detailed in Dr.
Lytwyn’s Report. Although there were gaps in isinglass trade at Norway House, they
are apparently due to price depressions making it unattractive for the
aboriginal people to produce. However, trade restarted many years before 1875. Norway
House district returns show a steady and relatively large trade in isinglass
during the period leading up to the Treaty, with the highest trade occurring in
1873-1874 when 582 pounds of isinglass was purchased by the HBC. To produce
this quantity required almost 6000 average size sturgeon.
9. Adding to this
picture, I note the HBC records for the years 1870-1871 and 1872-1873 provide a
breakdown of where, within the Norway House district, isinglass was being
traded. These records show that the Norway House post was the main procurer of
isinglass for the district accounting for 334 pounds in the 1870-1871 period
and 259 pounds in the 1872-1873 period out of totals in those periods of 394
and 404 respectively that were contributed to by 3 other posts in the district.
10. Further, Dr. Lytwyn
notes commercial trade in fish products such as isinglass continuing after
Treaty Number 5 was signed in 1875 as did the trade in fish oil which was also
made for trade prior to 1875.
11. In 1882, Ebenezer
McColl, Inspector of Indian Agencies for the Manitoba Superintendency, bemoaned
the destruction of fish by aboriginal people who sold fish oil. His Report in 1882
noted that it was only within the last 10 years that aboriginal people commenced
to make fish oil for traffic and then only in limited quantities until 1879
when about 1000 gallons where manufactured and sold to traders.
12. Dr. Lytwyn concludes
his report with a quote from Frank Tough’s work: “As Their Natural Resources Fail”:
Native Peoples and the Economic History of Northern Manitoba 1870-1930”:
An examination of Norway House Journals between 1872 and 1876
reveals that there was a distinct fishing cycle: jackfish were sought in the
early spring; in the early summer the focus shifted to sturgeon; more fishing
went on in the late summer; the crucial fall fishery centered on whitefish; and
whitefish were again intensively exploited after freeze-up. Posts also
purchased sizeable quantities of sturgeon from Indians in the late winter. In
this sense, Indians engaged in fishing for commercial exchange prior to the
treaties.
Rejoinder to Dr.
Lovisek’s Rebuttal Report
1.
Dr. Lytwyn was
afforded the opportunity to respond to Dr. Lovisek’s Rebuttal Report. In
response to the Rebuttal Report, Dr. Lytwyn did additional research in the HBC
archives in order to reply to a number of Dr. Lovisek’s specific rebuttal
points. He concluded that such additional research only confirmed his
conclusion that an aboriginal commercial fishery existed in the Norway House district
before Treaty Number 5.
2.
In Dr. Lytwyn’s first
report he acknowledged reviewing, primarily, HBC post journals for Norway House
and district reports and only a sample of Norway House account books. In his
Rejoinder, he examined an additional 261 Norway House account books and an
entire series of miscellaneous records relating to Norway House up to 1875.
Reading Norway House post journals in association with other such HBC records,
was suggested to provide a more comprehensive understanding of the commerce
with the aboriginal people in Norway House district. Indeed, Dr. Lytwyn
criticized Dr. Lovisek’s rebuttal on the basis that Dr. Lovisek’s Report depended
almost entirely on HBC post journals from which very little can be gleamed when
examined alone since they tended to focus more on the fur trade.
3.
Dr. Lytwyn does not
disagree with Dr. Lovisek’s stressing that many examples of aboriginal trade
are simply examples of aboriginal people assisting or accompanying HBC
personnel. But he continued to ascribe to the view that the need for fish and
fish products by the HBC was such as to require both employed fishermen (aboriginal
and non-aboriginal), as well as aboriginal fishermen who, although not employed
by the HBC, accompanied employed fishermen and assisted them. Such others
would have received unrecorded consideration for their efforts and, in any
event, the acknowledgment of employed aboriginal fishermen and aboriginal
assistants would not distract from HBC records that indicate that local aboriginal
people were also independently trading fish at the post. Looking beyond his
report, even on rigorous cross-examination, he stressed his opinion that
assisting HBC personnel, without payment, would be a provision of assistance in
the commercial context since no such assistance, considering the traditions and
culture of the people, would be provided without expectation of consideration
of one form or another from the post. For example, the provision of food and
shelter during hard times would be expected consideration for assistance
provided. I accept this evidence as a form of income-in-kind.
4.
Dr. Lytwyn is
critical of Dr. Lovisek using the uncertainty of the nature of the relationship
between the HBC and aboriginal fishermen to undermine his opinions without
offering any clarification of the situation on her own. Dr. Lytwyn simply
offered his view that there was a reciprocal relationship between the HBC and
the aboriginal people of the Norway House district. Whether they needed food or
shelter, the use of HBC storage facilities for fish for the winter or the
provision of such products as fish oil or canoe bark; they were all offered in
return for the assistance they provided the Company in respect of its fishing
activities. The commerce of the post was reciprocal and commercial in that
sense.
5.
That reciprocity
would not preclude the post providing fish to the aboriginal people at times
when they were starving and dependent on the HBC for survival. That Dr. Lovisek
cites examples of this cannot, in Dr. Lytwyn’s opinion, distract from a
commerce of interdependency that supports a finding that there was sufficient
commercial activity in relation to aboriginal fishing and fisheries to support
the view that the aboriginal people of the Norway House district were engaged
in commercial fishing at the time of the Treaty.
6.
Dr. Lytwyn in his
Rejoinder cites other writings that describe the reciprocal relationship
between traders and aboriginal people as trade in a very real sense. While not
appearing to be economic, they were in the pursuit of self-interest. Sharing a
catch was trade in both a material and cultural context.
7.
The Rejoinder also
refers again to the detailed records of Norway House district isinglass returns
available in respect of most years before 1875.
8. Dr. Lytwyn condemns Dr. Lovisek’s
definition of a commercial fishery as too narrow and outdated.
9. Other historical geographers reporting on
nearby territories have concluded that: “There is no question that fur trading
would not have been a profitable venture for Euro Canadians had aboriginal
people refused to sell them food or to work for them at very modest wages as
fishers, hunters and collectors.”
10. While such works, and others are cited as well, relate
to other territories, Dr. Lytwyn writes convincingly that aboriginal people
throughout Canada relied on fishing for both food and trade.
11. Dr. Lytwyn is also critical of certain of Dr.
Lovisek’s observations or assumptions such as there being no standard unit of
exchange for commodity barters, when in fact there was a very clear standard of
exchange employed by the HBC.
12. Dr. Lytwyn is critical of Dr. Lovisek’s use of one
particular source throughout her report. That source is from an unpublished
work. It was a booklet compiled as a resource guide for grade school Social
Studies classes. It was not intended or written as a scholarly, peer-reviewed publication.
13. Twenty-nine pages of critical commentary of Dr.
Lovisek’s Rebuttal Report need not be reviewed further for the purposes of
these Reasons.
14. Neither of Dr. Lytwyn’s two reports are flawless.
Nonetheless, on balance, I accept his opinions. His knowledge and understanding
of aboriginal life and the extent of his research concerning fishing at and
around Norway House at relevant times reflect an informed opinion. His views
were not arguments in the guise of an expert opinion. They were objective, for
the most part, and provided me with sufficient confidence in their earnest
formulation to gain my acceptance.
Dr. Lytwyn’s Testimony
1. I noted at the outset that in addition to
his report, I have listened to Dr. Lytwyn’s testimony and observed him during
the hearing and accept much of his evidence, including his conclusion that the
Upland Cree in the Norway House district fished commercially in the sense he
ascribed to that notion.
2. His testimony largely re-iterated his
report emphasizing the importance of fishing to the post. Without fish, the
post could not survive and employed fishermen would not have replaced the need
to purchase fish from aboriginal people to supplement the food required to
operate the post and provision the boat brigades. More than one generation of
aboriginal people preceding the Treaty had participated in the commercial
exchange of isinglass, sturgeon and whitefish at the post.
3. Like the fur trade, there was a complex
system of exchanging goods, including fish and fish by-products, and services,
including fishing, based on a standard of trade (such as equivalency in value
to one beaver pelt) or on reciprocal obligations.
4. He acknowledged that Dr. Lovisek’s
definition of commercial trade makes it impossible to include aboriginal
commerce but he rejected her definitions as do I.
5. He also rejected her localized definition
of who the aboriginal people were that had to be identified as being engaged in
commercial fishing at the time of the Treaty. He insisted that the ancestors of
aboriginal people that comprised today’s Band, followed a traditional way of
life covering large areas, 50-100 kilometres around Norway House. They
congregated at the Norway House post at certain times including celebrations or
when food was scarce or they were sick. The aboriginal community at the post
was not sedentary but there was still in both a strict and looser sense, a
community attached to it that became the Norway House Cree Nation that entered
into the Treaty. Examining the traditions and lifestyles of those people before
and at the time of entering into the Treaty requires including the lifestyles
and practices of that Nation as its people actually lived throughout the
district.
6. Dr. Lytwyn’s frustration with Dr.
Lovisek’s constant criticism of his report by in effect saying “prove it” is
demonstrated in his response to her suggestion that it was HBC employees who
might have made isinglass. “If they were preparing isinglass, I can almost
guarantee you that it would have been itemized in the post journals” (page 454
of the transcript of the proceedings). In general, I am not convinced that any
matter of history can ever be “proven”. The burden, however, should reflect a
wide berth of deference to probability, and common sense, and place little or
no weight given to legal jargon such as “employment”. Recognizing our
aboriginal people’s own sense of their history in this case, includes
recognition of a pre-contact practise of making isinglass which later proved to
have value in Europe. Without “proof”, but taking into account
Dr. Lytwyn’s opinion, I have little doubt that the commerce between the post
and the aboriginal people of the Norway House district included the trade in
isinglass.
7. Dr. Lytwyn confirmed his opinion that
more than two generations of ancestors of the people who entered into the
Treaty sold sturgeon, isinglass, fish oil and fish flesh to the HBC in what
must be understood and accepted, in terms of the economy of those people, as
part of a commercial operation. Recognizing our aboriginal people’s own sense
of their history of fishing for income or income-in-kind gives such opinion an
even better sense of correctness.
B. Dr.
Lovisek’s report entitled “Rebuttal” filed by Respondent’s counsel is a
rebuttal of Dr. Lytwyn’s report.
Curriculum Vitae
(C.V. in brief)
1.
Dr. Lovisek has a Bachelor of
Arts in anthropology from York University. She supplemented it with two years of archaeological
studies at the University of Toronto before commencing work on her Masters
Degree in environmental studies also at York University. Dr. Lovisek completed her Ph.D. in anthropology and
ethnohistory at McMaster University. Her dissertation thesis was "Ethnohistory of the Algonkian Speaking People of
Georgian Bay - Pre contact to 1850".
2.
Dr. Lovisek has
testified as an expert witness in six cases (not including this one). She gave
expert evidence in Ballantyne. In the majority of the cases, she
provided historical background of the fishing practices of various aboriginal
groups.
3.
Dr. Lovisek has
almost twenty years of experience conducting research and preparing reports for
various government departments, as well as a different First Nations on
questions of historical uses and practices, as related to aboriginal litigation
claims.
4.
During her career,
Dr. Lovisek has contributed to a variety of publications primarily on the topic
of Ojibwa people in the Treaty 3 area. She has authored over twenty conference
papers and book reviews, as well as over sixty reports and manuscripts, many of
them related to fishing as a part of aboriginal culture.
5.
Needless to say, this
far too brief snapshot of her C.V. does not do justice to Dr. Lovisek’s
credentials that qualify her as an expert on the subject to which her reports
are addressed.
Qualifying Dr. Lovisek as an
expert
1.
The Respondent’s counsel sought
to have Dr. Lovisek qualified as an expert, anthropologist specializing in
ethnohistory which includes the use of ethnographic, archeological, oral
histories and historical sources concerning the First Nations people of Canada.
2.
Appellant’s counsel challenged
her specific expertise in the Norway House area under consideration in these
Appeals and her perspective as an anthropologist. Under questioning she
acknowledged, for example, that the term Upland Cree had no meaning in
anthropological terms because it would not lump people together by geographical
terms.
3.
On questioning, she admitted
that she had not done any anthropological or ethnological fieldwork in the
Norway House area or in respect of the northern Cree community. Nor did she
rely on any anthropological or ethnological literature regarding the Norway
House Cree.
4.
While I accept that the value of
her reports might be diminished by the fact Dr. Lovisek has not used some of
the tools of her trade in preparing her opinion, she emphasized that within the
qualification of ethnohistory she relies on historical sources as a principle
methodology in her work. I accept that through those historical sources, which
her reports confirm she relied on, she is capable of offering an expert opinion
on the subject to which her reports are addressed. Any concern over the
relative weight I might give her opinion and evidence relative to that of Dr.
Lytwyn, is more affected by my concerns over definitions she imposed in framing
her opinions and her hired-gun attack on micro-flaws in Dr. Lytwyn’s reports which
have relied on sources that are clearly wholly within his area of expertise. It
is these concerns that have diminished
the value of her opinions and evidence, given my need to consider a broader
picture than the one she was trying to paint.
The Rebuttal
1.
The first part of the Rebuttal
sets out definitions. In addition to defining a “commercial fishery” as a
fishery in which fish are caught almost exclusively for sale and excludes fish
caught for consumption of an employer, she, by definition, distinguishes
“commercial” fishing from other fishing activities that involve bartering,
trade or creation of a debt. In excluding this type of trade from her
definition of a “commercial” transaction, she relies, in part at least, on the
notion that there is no standard unit of exchange for a commodity bartered.
That is, her definition of commercial precludes a vague reciprocal economy or
culture from being “commercial”.
2.
At the outset, it is important
that I note that I do not accept this narrow concept of commercial fishing.
Indeed, the whole idea of needing to define fishing activities of the ancestors
of the Norway House Cree as “commercial” or not was regrettably imposed by the
terms of reference of the opinions sought in the first place. Nonetheless, to
the extent that it was important for me to determine the degree of commerce or
commerciality that fishing had before 1875 to the people of Norway House, that
determination cannot be based on such limiting and narrow definitions as
prescribed by Dr. Lovisek. The question that might have been asked: “Was
fishing an important part of life on the reserve pre-1875? Was it part of the
economy of the reserve that was engaged in by Indians qua Indians?” If
these are the questions that are at the heart of the legal question before me,
Dr. Lovisek’s rebuttal offers little assistance. Still, I will not ignore her
report entirely.
3.
The first part of Dr. Lovisek’s
Report is an orientation to Norway House. It confirms the migration of the Cree
and ways in which they have been classified. One such classification is noted
in her reference to Dr. Tough’s publication. The quotation referred to
describes Village Indians which was the group that ultimately in 1875 came to
be the Norway House Band (as opposed to the Wood Indians who in 1875 were given
a separate reserve on the Southwestern part of Lake Winnipeg) as having an
economic basis that stressed fishing and wage labour, as well as potato
gardening. Dr. Tough notes that year-round habitation at the village was not
possible due to the need for food and villagers left for fishing places away
from the reserve. This confirms Dr. Lytwyn’s opinion that these Village Indians
would have knowledge and experience in relation to fishing and in assisting the
non-aboriginal fishers employed by the HBC and would, in all probability, have
shared that knowledge and experience as part of their economic co-existence
when they were residing at the post. That Dr. Lovisek sees this as labour and
not trade or commerce does not deny the overwhelming historical evidence that
she herself does not deny which is that fishing was a significant part of the
economic existence of the Upland Cree in the Norway House district.
4.
Dr. Lovisek states that it was
not until the mid-1880s that commercial fishing was introduced into Lake
Winnipeg. These were white fishermen from the south encroaching on aboriginal
food fisheries. It was again Dr. Tough who commented on this intrusion
and the aboriginal people’s initial opposition to it. In this context, Dr.
Tough did describe Norway House as an Indian reserve having little or no
involvement in that industry until it emerged in the 1880s. The
commercial fishing that is being referred to is clearly of a different sort
than that which was engaged in by the Norway House Cree prior to this
intrusion. However, that does not distract from his acknowledgement in the same
work that in a sense, but in a different sense, they were involved in “fishing
for commercial exchange prior to the treaties”. They just were not involved yet
in this commercial fishing “industry”. I would note, however, that the evidence
of Mr. L. Saunders, albeit hearsay, was that the Co-op was necessary to protect
aboriginal fishers from being treated poorly, not even being paid by weighing
the fish when sold along side the commercial boats from the South. This would
detract from any notion that these aboriginal fishers were involved in this
so-called industry. Regardless of the accuracy of this sort of “oral history”,
there is clearly acknowledgment in the historical records that the aboriginal
people of the Norway House reserve valued their fisheries and saw the
non-aboriginal fisherman as intruding on a valuable resource.
5.
Indeed, exploitation of the
fisheries resulted quickly in government regulation and Dr. Lovisek reports
that as early as 1900 the residents of Norway House applied for and received
licenses to fish in Lake Winnipeg. She goes on to report that in 1904 members of the
Norway House Band were fishing for various commercial companies. Again, the
import of Dr. Lytwyn’s rebuttal is that by her definition of commercial
fishing, it would not have started until a decade or more after the signing of
the Treaty.
6.
The next part of Dr. Lovisek’s
Report is the very critical analysis of Dr. Lytwyn’s Report. Here she makes it
clear that the Lytwyn Report appears to accept that any and all potential
transactions of what may be barter, trade or debt payment provides evidence of
fishing for commercial purposes. She then goes on to try to establish that a
number of references made by Dr. Lytwyn to what might appear to be isolated
commercial transactions, were not proof of what they purported to be simply
because there was no proof that a number of the trades that he was referring
to, were trades by “Indians” or were trades by aboriginal people who lived on
the post or that the fish traded were caught in fisheries near the post.
Indeed, there seems to be little about Dr. Lytwyn’s Report that Dr. Lovisek
does not criticize on the basis that it does not prove the existence of
commercial fishing by the ancestors of the Norway House Band.
7.
She also refers to the lack of
evidence of pre-contact trading practices of the ancestors of the people of
Norway House and refers to the need for anthropological research which she
herself did not undertake. She states: “An aboriginal rights claim to
commercial fishing requires detailed archeological, genealogical, historical
and anthropological research and supporting documentation to ascertain that the
activity, in this case, commercial fishing was integral to the distinctive
culture of the specific aboriginal people prior to contact with Europeans.
There is no indication, for example, that in the early HBC post reports at
Norway House aboriginal people in the vicinity of Norway House posts bartered
or traded fish or fish products with other aboriginal peoples.” This
perhaps speaks to the Section 35 argument but again offers nothing constructive
to the section 87 analysis.
8.
Her report then goes on for 40
plus pages picking at Dr. Lytwyn’s Report in an attempt to discredit it. The
first and most revealing criticism is Dr. Lytwyn’s acceptance that “any and all
potential transactions of what may be barter, trade, or debt payment provide
evidence of fishing for commercial purposes.” She does not understand or want
to acknowledge in her adversarial role that bartering is a commercial activity.
She is bent on distinguishing the degree of commerciality that is reflected by
the commerce that emerged late in the 1880s and early 1900s by the
non-aboriginal fishing enterprises from the south that Dr. Tough described in
his work as the establishment of a commercial fishing industry. I am not
concerned with the emergence of an “industry” even 10 years after the Treaty
was signed. I am concerned, in my analysis, with the pursuit of a traditional
activity that supported the people of Norway House by providing income or
income-in-kind prior to the Treaty. That would include all the things Dr.
Lovisek wants to exclude including wages for fishing for the HBC or assisting
its employed fishers.
9.
I do not find it to be a
particularly productive exercise to review any part of that critical rebuttal.
Surrebuttal
to Dr. Lovisek’ Rebuttal Report
1. This report defends her use of Hudson’s Bay
post journals and states that Dr. Lytwyn has not undertaken the required
research in the Norway House area to support his conclusions that the
aboriginal people participated in commercial isinglass production in the Norway
House area. Dr. Lovisek imposes a burden of proof on Dr. Lytwyn that does not
exist in law. Further, research might prove that there was definitely
commercial trade in isinglass at about the time of the entering into the Treaty
but short of such proof, I am still satisfied that the evidence upon which Dr.
Lytwyn relies establishes a probability that isinglass, made from fish caught
in local sturgeon fisheries, was being traded at Norway House by the aboriginal
people of Norway House in the quantities suggested by Dr. Lovisek as evidenced
by specific documentation in the Hudson’s Bay Company account books.
2. The Surrebuttal goes on again to criticize Dr.
Lytwyn for not defining commercial fishing as she would define it and again
picks on some asserted inconsistencies, errors and omissions in Dr. Lytwyn’s
Report.
Dr. Lovisek’s Testimony
1.
Dr. Lovisek’s view of the
aboriginal people of Norway House before the signing of the Treaty stems
somewhat from her view that in the 1860s the importance of the post had
declined due to Red River traffic to Minnesota. This caused a decline of York Factory as a major
depot as well. There was increased movement of aboriginal people that had links
to the activities of the HBC posts. New economic resources were being sought as
well as new locations. Identifying who did what and where was difficult.
Although she stressed employment links and menial assistance tasks such as
hauling fish caught by employed non-aboriginal fishermen to deflate any notion
of commerce being engaged in by the aboriginal population of Norway House, her
suggestion was also that there is no evidence that these were the people who
stayed behind at the time the Treaty was signed.
2.
She attempted to focus attention
just to the residents of the post and not to the Upland Cree of the district.
3.
She criticized Dr. Lytwyn’s
over-use of HBC account books in his Rejoinder, and as noted above, she took
issue with the conclusions he drew from Dr. Tough’s work.
4.
Dr. Lovisek confirmed her
opinion that the aboriginal people of Norway House before and at the time of
entering into the Treaty did not engage in a commercial fishing operation.
5.
While I have accepted her
qualification to express an opinion, that does not suspend my need to evaluate
its importance and the weight I should give it. Unlike the evidence of Dr.
Lytwyn, I find her opinions too much in the nature of argument based on
reasoning bent on upsetting a position as opposed to constructively building
one. In large part, she undermined Dr. Lytwyn’s opinions by attacking his proofs
as loosely based while presenting no well substantiated evidence that would
show he was wrong or she was right. Her definitions and standards of proof went
beyond what I found helpful.
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