R. v. Kakfwi, 99 DTC 5639, [1999] 4 CTC 264 (FCA)

Marceau J.A.:

The facts of this appeal brought against a decision of the Tax Court of Canada are straightforward.

The respondent is an Indian as defined by the Indian Act and is a member of the Fort Good Hope Dene Indian Band located within the North West Territories. In 1992, as Chief of the Band, he was paid a salary of $56,420. Such moneys were paid out of funds provided by the Crown under a program known as Band Support Funding (“BSF”) — a program by which funds have been provided by the Federal Government to support core funding of Band Councils and their activities throughout the country. The appellant was assessed by the Minister with respect to taxes owing from this salary in the 1992 taxation year. This assessment was appealed on the basis that the salary was exempt from taxation due to the operation of subsections 87(1) and (2) and subsection 90(1) of the Indian Act. These provisions, along with related subsections 90(2) and 90(3), read as follows:

87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely,

(a) the interest of an Indian or a band in reserve lands or surrendered lands; and

(b) the personal property of an Indian or a band situated on a reserve.

(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.

90. (1) For the purposes of sections 87 and 89, personal property that was

(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, or

(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,

shall be deemed always to be situated on a reserve.

(2) Every transaction purporting to pass title to any property that is by this section deemed to be situated on a reserve, or any interest in such property, is void unless the transaction is entered into with the consent of the Minister or is entered into between members of a band or between the band and a member thereof.

(3) Every person who enters into any transaction that is void by virtue of subsection (2) is guilty of an offence, and every person who, without the written consent of the Minister, destroys personal property that is by this section deemed to be situated on a reserve is guilty of an offence.

87. (1) Nonobstant toute autre loi fédérale ou provinciale, mais sous réserve de l’article 83, les biens suivants sont exemptés de taxation:

a) le droit d’un Indien ou d’une bande sur une réserve ou des terres cédées;

b) les biens meubles d’un Indien ou d’une bande situés sur une réserve.

(2) Nul Indien ou bande n’est assujetti à une taxation concernant la propriété, l’occupation, la possession ou l’usage d’un bien mentionné aux alinéas (1)a) ou b) ni autrement soumis à une taxation quant à l’un de ces biens.

90. (1) Pour l’application des articles 87 et 89, les biens meubles qui ont été:

a) soit achetés par Sa Majesté avec l’argent des Indiens ou des fonds votés par le Parlement à l’usage et au profit d’indiens ou de bandes:

b) soit donnés aux Indiens ou à une bande en vertu d’un traité ou accord entre une bande et Sa Majesté,

sont toujours réputés situés sur une réserve.

(2) Toute opération visant à transférer la propriété d’un bien réputé, en vertu du présent article, Situé sur une réserve, ou un droit sur un tel bien, est nulle à moins qu’elle n’ait lieu avec le consentement du ministre ou ne soit conclue entre des membres d’une bande ou entre une bande et l’un de ses membres.

(3) Quiconque conclut une opération déclarée nulle par le paragraphe (2) commet une infraction; commet aussi une infraction quiconque détruit, sans le consentement écrit du ministre, un bien meuble réputé, en vertu du présent article, situé Sur une réserve.

The Tax Court judge allowed the appeal ordering a reassessment on the basis that salary received by the respondent not be included in computing the respondent’s income for the 1992 taxation year. In so deciding, the judge first determined that BSF funding was sufficient so as to be viewed as an agreement between a Band and Her Majesty. The judge then purported to rely upon the judgment of LaForest J. in Mitchell v. Sandy Bay Indian Band' [1] in holding that this is the type of agreement to which paragraph 90( 1 )(/?) is to apply. The judge noted that LaForest J. differentiated between property which the Indians held and acquired in “their capacity as Indians, which paragraph 90( !)(/>) is there to protect through the concept of notional situs, and that which is held by Indians in the course of and as the result of their activities in what he [LaForest J.] calls ‘the commercial mainstream’”. Although he found that the payments were not made in accordance with the obligations of Treaty No. 11, the property was nonetheless found to be held by “Indians qua Indians”. As such, the Tax Court judge held that the agreement was within the contemplation of paragraph 90(1 )(/?). He then rejected the Crown’s argument that, even if the protection from taxation resulting from paragraph 90(1)(b) was found to extend to the BSF funds in the hands of the Band, such protection was not available when those funds were subsequently turned over as salary by the Band to the respondent. In so doing, he determined that the words “always” within the phrase “shall be deemed always to be situated on a reserve” is to be interpreted as meaning that “the funds shall be deemed to be situated on a reserve for so long as they are traceable and are to be found in the hands of either an Indian or a Band”. Given such conclusion, the Tax Court judge held that the provisions of sec- tion 87 were to be given effect, resulting in tax exemption with respect to the salary.

The appeal is launched on two grounds: that the BSF funds are not paid to a Band pursuant to the type of agreement to which subparagraph 90(1 )(b) of the Act applies; and that even if they were, the respondent’s employment income does not fall within the confines of subparagraph 90(1)(b) of the Act. I have come to the conclusion that both grounds are substantially valid although I would express them somewhat differently. I would say, first, that the Band Support Funding program — if it can be said to be an agreement on the sole basis that the Bands “consent” to take the funds and use them for certain basic programs for the benefit of their members, a view which strikes me as stretching the notion of a convention between parties — is certainly not an agreement within the meaning of subparagraph 90(1)(b) of the Act. I would then add that, in any event, wages paid to and received by an employee of the Band as compensation for his or her services, whatever be the source of funding of the Band, cannot be said to be the type of “personal property” contemplated by paragraph 90(1) of the Act.

I

For my first legal proposition — that the BSF program, assuming that it can be viewed as a sort of agreement, is not of the type to which subparagraph 90(1 )(Z?) applies — I need not rely on any other authority than the landmark decision of the Supreme Court in Mitchell and the analysis developed therein by LaForest J. in interpreting the provisions of paragraph 90(1)(b) which were approved by six of the seven members of the Court.

Proceeding first to a strict interpretation of the words of the provision, LaForest J. stated as follows (at page 124):

...as I see it, the terms “treaty” and “agreement” in s. 90(1)(b) take colour from one another. It must be remembered that treaty promises are often couched in very general terms and that supplementary agreements are needed to flesh out the details of the commitments undertaken by the Crown; see for an example of such an agreement Greyeyes v. The Queen, [1978J 2 F.C. 385 (T.D.).

...Finally, the use of the term “given” in s. 90( 1 )0) can be taken as a distinct and pointed reference to the process of cession of Indian lands.

As demonstrated by LaForest J., this textual interpretation which frames the context of paragraph 90( 1 )(£>) within the treaty making process, is in strict conformity with the historical development of and the rationale be- hind those sections of the Indian Act aimed at conferring tax benefits and protection from attachment to the Indians, principally sections 87 and 89 and complementarity section 90. These benefits and protection, in LaForest J.’s understanding, are thus not to be perceived as a form of social assistance, but as part and parcel of the treaty-making process and as a means of ensuring the ongoing existence of whatever interests may have been granted in exchange for acknowledgement of Crown sovereignty. LaForest J. stated at page 130:

I take it to be obvious that the protections afforded against taxation and attachment by ss. 87 and 89 of the Indian Act go hand-in hand with these restraints on the alienability of land. I noted above that the Crown, as part of the consideration for the cession of Indian lands, often committed itself to giving goods and services to the natives concerned. Taking but one example, by terms of the “numbered treaties” concluded between the Indians of the prairie regions and part of the Northwest Territories, the Crown undertook to provide Indians with assistance in such matters as education, medicine and agriculture, and to furnish supplies which Indians could use in the pursuit of their traditional vocations of hunting, fishing, and trapping. The exemptions from taxation and distraint have historically protected the ability of Indians to benefit from this property in two ways. First, they guard against the possibility that one branch of government, through the imposition of taxes, could erode the full measure of the benefits given by that branch of government entrusted with the supervision of Indian affairs. Secondly, 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. In effect, these sections shield Indians from the imposition of the civil liabilities that could lead, albeit through an indirect route, to the alienation of the Indian land base through the medium of foreclosure sales and the like; see Brennan J.’s discussion of the purpose served by Indian tax immunities in the American context in Bryan v. Itasca County, 426 U.S. 373 (1976), at p. 391.

This notion of entitlement stemming from the exchange involved in the treaty process 1s, in LaForest J.’s view, the reason why property given according to paragraph 90( !)(/?) is deemed to be situated in a reserve irrespective of its actual situs. At page 134, LaForest J. noted:

The reason why Parliament would have chosen to provide that personal property of this sort should be protected regardless of where that property is situated is obvious. Simply put, if treaty promises are to be interpreted in the sense in which one may assume them to have been naturally understood by the Indians, one is led to conclude that the Indian signatories to the treaties will have taken if for granted that property given to them by treaty would be protected regardless of situs. In the case of chattels, I am aware of no historical evidence that would suggest that Indians ever expected that their ability to derive the full benefit of this property could be placed in jeopardy because of the ability of non-natives to impose liens or taxes on it every time it was necessary to remove this property from the reserve. Similarly, when the Crown acquits treaty and ancillary obligations through the payment of moneys relating to assistance in spheres such as education, housing, and health and welfare, it cannot be accepted that Indians ever supposed that their treaty right to these entitlements could be compromised on the strength of subtle legal arguments that the property concerned, though undoubtedly property to which the Indians were entitled pursuant to an agreement engaging the honour of the Crown, was notionally situated off the reserve and therefore subject to the imposition of taxes or to attachment. It would be highly incongruous if the Crown, given the tenor of its treaty commitments, were permitted, through the imposition of taxes, to diminish in significant measure the ostensible value of the benefits conferred.

And concluding at page 136:

In summary, 1 conclude that an interpretation of s. 90(1(b), which sees its purpose as limited to preventing non-natives from hampering Indians from benefiting in full from the personal property promised Indians in treaties and ancillary agreements, is perfectly consistent with the tenor of the obligations that the Crown has always assumed vis-à-vis the protection of native property.

Thus, LaForest J.’s analysis makes clear that an application of the basic rules of legislative interpretation which require that the terms “treaty” and “agreement” in paragraph 90( !)(/>) be linked together so as to limit the extent of the word “agreement” to that of “ancillary agreement” — that is to say an agreement in the nature of a treaty or attached to a treaty — is wholly supported by the history of the protective tax regime adopted by Parliament in furtherance of the duties of the Crown toward Indians.

May I add that, in my view, LaForest J. could have used a further argument in support of his understanding of the meaning of the term “agreement” in the context in which it appears by pointing out to the French corresponding term used by Parliament: “accord”. While the word “accord” is in the family of those French words that may be grouped under the English concept expressed by the word “agreement”, such as “contrat”, “arrangement”, “convention”, “entente”, it has a clear connotation to the idea of a reconciliation, of a pact arrived at by the giving and taking of both parties, of a mutual understanding worked out through concessions and compromise, [2] and is therefore a word closely related to treaty.

Asa last remark, I note that counsel for the respondent urged the Court to view much of LaForest J.’s discussion on the nature of paragraph 90(1 )(b) as mere obiter given that the Supreme Court was, in that instance, addressing the issue of whether the term “Her Majesty” within the subsection extended to the Crown in right of a province. While acknowledging the centrality of that issue to the decision in Mitchell, the larger discussion entered into by LaForest J. concerning the nature of the exemptions from taxation under the Indian Act and the conclusions reached were integral to the final decision and I think they must be heeded by this Court, in this instance, irrespective of the absence of an issue involving the provincial Crown.

In my respectful opinion, therefore, the Tax Court judge simply misapplied LaForest J.’s analysis and misconstrued paragraph 90(1)(b) when he held that the BSF funding, which, according to his own finding, was in no way related to any treaty rights of the Band and was rather of the nature of a subsidy, constituted an “agreement” as per paragraph 90(1)(b) of the Act.

Il

As explained above, it is in the course of considering the second ground of attack on which the appeal is launched that I came to my second legal proposition. I say that wages paid to and received by an employee of a Band as compensation for his or her services cannot fall under the scope of application of subsection 90(1) simply because, in my opinion, neither money as such nor the receipt of money as wages were meant to be included in the term “personal property” (“biens meubles”, in the French version) as used by Parliament in formulating this deeming provision.

Strictly speaking, I do not need to dwell on this second proposition to support my disposition of the appeal, the first proposition I developed being, in my view, sufficient and compelling. It is my feeling, however, that since this second proposition is in line with the alternative submission of the appellant, I cannot simply ignore it.

The terms “personal property” in Common law and its correspondent “biens meubles” in French Quebec law, even if they have both vocation to include all things other than real estate or “biens immeubles” subject to personal ownership, may be less inclusive according to the context in which they are used. On a mere reading of subsection 90(1) in both its versions, it appears clear to me that the two terms were not used by Parliament in their all-inclusive sense. On enacting paragraph 90(1)(a), Parliament could obvi-

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ously not have in mind a notion of personal property that included money per se. Theoretically, we may speak of moneys being acquired with moneys, if we think of foreign moneys, but surely speculative monetary transaction of that type could not have been in any one’s mind when the text was adopted. And if money per se was not included in the notion of personal property envisaged by Parliament in adopting paragraph 90(1)(a), it would be difficult to accept that on enacting paragraph 90(1)(b), Parliament switched to a more inclusive notion. There is a basic rule of proper legislative writing which requires that a term be taken in the same sense when used twice in the same provision, a rule that gave rise to the so called “presumption of consistent expression” which would logically govern. [3]

I am well aware, of course, that a similar reasoning — I mean one based on the reference to “moneys” in paragraph 90(1 )(«) — was used in two decisions of the Manitoba Court of Queen’s Bench [4] in support of the view that “the words ‘personal property’ [in subsection 90(1)] are meant in the restrictive sense as possessing qualities of a physical sense”, a view that was later rejected by Morse J. in Mitchell v. Sandy Bay Indian Band [5] on the basis of the following reasoning (which was to be subsequently adopted by Errico J. in Fricke v. Michell [6] ):

I am, with respect, unable to reach the same conclusion as did Ferg L.J.Q.B. with respect to the meaning of the words “personal property” so far as s. 90(1) is concerned. In my judgment, there is no compelling reason why the words “personal property” must be given the same meaning in para. (b) as in para. (a). The section is meant to extend the meaning of the words “personal property situated on a reserve”. Section 90(1)(a) uses the words “personal property ... purchased”, while s. 90( !)(/?) uses the words “personal property ... given”, and the two subsections are separated by the disjunctive preposition “or”. It is true, as was pointed out by Ferg L.J.Q.B., that s. 90(3) has reference to tangible personal property, but I do not see why making the destruction of property an offence necessarily restricts the meaning of “personal property” in s. 90(1). So far as s. 90(2) is concerned, that subsection is, I think, broad enough to cover not only tangible but intangible personal property such as a debt or a right to payment.

I refuse to accept that the consistency argument can be dealt with so unquestionably. The dissociation between the two paragraphs of subsection 90(1) with respect to their relationship with the opening words of the provision may be possible when analysing the English version of the text, but I do not believe that, in the French version, the two paragraphs can be so easily dissociated grammatically. The two paragraphs being placed on exactly the same footing with respect to the “biens meubles” to which they directly relate (“les biens meubles qui ont été soit achetés ... soit donnés...”), it is impossible, I submit, not to read them together.

What is undeniable, however, is that the consistency argument drawn from the presence of the word “moneys” in paragraph 90(1 )(a) does not allow any inference that would go beyond “money” so as to include all intangible property. I would therefore respectfully agree with Morse J. in his criticism of the two Manitoba decisions insofar as they extended the nonapplication of subsection 90(1) to all forms of intangible property. The exclusion of money on the basis that money cannot be purchased with moneys cannot be extended to a debt which, of course, may well be purchased with moneys. Indeed, to my mind, there is something striking in the views expressed in those decisions in that no attempt is ever made to distinguish between moneys per se and a debt or a right to receive money. This confusion is, in my opinion, unacceptable as moneys and the right to money are legal entities that differ in ways that are directly relevant to the operation of subsection 90(1). A debt or other form of obligation has an identifiable, autonomous and ongoing existence which money does not have, in that moneys received, be it as wages or otherwise, lose the character that could be derived from their sources upon entering the pool of monies within the pocket of the employee.

Furthermore, my conclusion that money per se does not fall within the rubric of “personal property” referred to in subsection 90(1) is based not only on the interrelationship between paragraphs 90(1)(a) and 90(1)(b), but also and even more basically on the fact that section 90 implies a form of personal property that subsists and keeps its identity, autonomy and character at least for a time, as demonstrated by the use of the word “always” in paragraph 90(1 )(£) and the provision of subsection 90(2) which money per se cannot satisfy. I reject the notion that “always” refers to merely location and would have been used simply to indicate that money is always within the reserve so long as it is traceable, and in any event such “traceability” is clearly insufficient when examined in light of the requirement within sub- section 90(2) that the passing of the personal property subject to subsection 90(1) is void if the approval of the Minister is not sought. I may be prepared to accept the logic of Morse J. that the reference to tangible personal property in subsection 90(3) does not necessarily restrict the application of section 90 to such tangible property if indeed money is viewed as intangible, but I do not see how the implications of subsection 90(2) can be severed from an understanding of the term “personal property” within the section as a whole, especially when there are other indications within the section which support the view that neither money nor income is personal property within the meaning of this particular section of the Act.

It is my opinion, therefore, that money per se is not covered by the term “personal property” within section 90 of the Act. But, even in light of such a finding, could the receipt of money as income be so covered? In Williams v. R.,’ [7] Gonthier J. noted, at page 888:

This Court’s decision in Nowegijick v. The Queen, [1983] 1 S.C.R. 29 (S.C.C.), stands for the proposition that the receipt of salary income is personal property for the purpose of the exemption from taxation provided by the Indian Act. 1 can see no difference between salary income and income from unemployment insurance benefits in this regard, therefore I hold that the receipt of income from unemployment insurance benefits is also personal property for the purposes of the Indian Act.

An examination of the decision in Nowegijick v. /?. [8] indicates that income is personal property because its constituent parts are personal property. Dickson J. (as he then was) simply adopted there, at page 38, the language of the Supreme Court of Illinois in the case of Bachrach v. Nelson? [9] in reaching the conclusion that income was indeed personal property:

The overwhelming weight of judicial authority holds that it is. The cases of Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56, 11 A.L.R. 300, Tax Commissioner v. Putnam, 227 Mass. 522, 116 N.E. 904, L.R.A. 1917F, 806 Stratton’s Independence v. Howbert, 231 U.S. 399, 34 S. Ct. 136, 58 L. Ed. 285, Doyle v. Mitchell Bros. Co., 247 U.S. 179, 38 S. Ct. 467, 62 L. Ed. 1054, Board of Revenue v. Montgomery Gaslight Co., 64 Ala. 269, Greene v. Knox, 175 N.Y. 432, 67 N.E. 910, Hibbard v. State, 65 Ohio St. 574, 64 N.E. 109, 58 L.R.A. 654, Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196, and State v. Pinder, 7 Boyce (30 Del.) 416, 108 A. 43, define what is personal property and in substance hold that money or any other thing of value acquired as gain or profit from capital or labor is property, and that, in the aggregate, these acquisitions constitute income, and, in accordance with the axiom that the whole includes all of its parts, income includes property and nothing but property, and therefore is itself property.

The logic in accepting income as personal property, as a general proposition, is that money or goods are property and the constituent parts of income and therefore income must also be a form of personal property. The acceptance of such logic is understandable within the context of section 87, where the focus in on situs and there is nothing to suggest that personal property refers to anything less than its most expansive meaning, a meaning which includes both money and, by extension, income. There is nothing within Nowegijick or Williams which would suggest that the classification of the receipt of income as personal property is somehow independent of the classification of money as a constituent component of that income. Having reached the conclusion that, for the purposes of subsection 90(1), money is not personal property, I must therefore conclude that income nor the receipt of income constitute personal property for the purposes of that subsection. In any event, if the receipt of money as wages is to be considered in itself and as distinct from what was before, that is the right of the employee to be paid wages and what followed, money in the pocket of the employee, then it is clear that such a receipt does not meet the “durability” requirement the particular notion of “personal property” used in subsection 90(1) implies as discussed above.

I acknowledge that my interpretation of the Act results in a distinction, in terms of taxable status, of an Indian chief’s income stemming from his office depending upon whether or not the duties of the chief are associated with an actual reserve. If such disparity is judged to be unwarranted or unfair, the remedy lies with Parliament. The link between sections 87 and 90 is totally effective in so far as exemption from direct taxation of land or personal property by a government authority is concerned but, in my interpretation of section 90, it cannot be extended further.

It is my opinion, therefore, that the Tax Court judge erred in concluding that the respondent could invoke paragraph 90( 1 )(/?) to shield himself from paying tax on his employment income. The BSF funds from which his salary was taken were not paid to his Band pursuant to a treaty or some ancillary agreement and, in any event, moneys per se or the receipt of moneys as wages do not constitute the “personal property” to which the deeming provision of section 90, and the resulting protection from tax per section 87, can apply.

Thus, the appeal should be allowed but, in disposing of it, the Court should bear in mind that the Tax Court judge, at the beginning of his reasons, had noted as follows:

At the opening of the trial I was advised by counsel that to try the issue whether or not the Fort Good Hope Band is situate on a reserve would require perhaps as much as two weeks of evidence, including the evidence of expert witnesses. The cost of this would be considerable, and would be unnecessary if the issue were ultimately to be resolved in favour of the Appellant on the basis of section 90. For this reason, I agreed to the joint request of counsel that the trial proceed only on the section 90 issue, and be resumed to deal with the question whether or not the Band is situate on a reserve only if the Appellant does not succeed under that section. As will appear, I have reached the conclusion that the Appellant is entitled to succeed on the basis of the deeming provision in section 90, and so it will therefore not be necessary to resume the trial.

I would therefore suggest that, on allowing the appeal, the Court send the matter back to the Tax Court for it to reopen the trial and consider the other aspect of the litigation.

Noel J.A. (dissenting in part); (Sexton J.A. concurring):

I have had the benefit of reading the reasons of Marceau J.A. and respectfully agree with his conclusion that the Tax Court Judge erred in holding that the amounts in issue were paid to the Band or the Respondent under an “agreement” within the meaning of paragraph 90(1 )(b) of the Indian Act. I would therefore allow the appeal on this ground and dispose of the appeal as he suggests.

I do not however agree with the alternative ground advanced by Marceau J.A. for allowing the appeal, namely that the expression “personal property” in section 90 excludes money.

I would first point out that the parties proceeded before the Tax Court on the agreed basis that the amounts in issue did constitute personal property within the meaning of section 90. [10] While the appellant did make submissions on the issue despite this prior agreement at the instigation of the Court, the respondent did not. In the circumstances, I believe, with respect, that it would have been preferable not to address the matter, particularly as it was not necessary for the disposition of the appeal.

However, since the issue has been addressed and as I do not agree with the opinion expressed by Marceau J.A. that money is not personal property under the Indian Act, I feel it necessary to briefly state the reasons for my disagreement on this narrow but important point.

Section 90 provides:

90. (1) For the purposes of sections 87 and 89, personal property that was

(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, Or

(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,

shall be deemed always to be situated on a reserve.

90. (1) Pour l’application des articles 87 et 89, les biens meubles gui ont été:

a) soit achetés par Sa Majesté avec l’argent des Indiens ou des fonds votés par le Parlement à l’usage et au profit d’indiens ou de bandes;

b) soit donnés aux Indiens ou à une bande en vertu d’un traité ou accord entre une bande et Sa Majesté,

sont toujours réputés situés sur une réserve. [my emphasis]

The essence of my colleague’s reasoning is that for purposes of paragraph 90(1 )(rz) the term “personal property” must be read as excluding money because the legislator could not have contemplated “moneys being acquired with moneys” when the Indian Act was introduced. It follows in his view that “personal property” under that paragraph excludes money per se. While paragraph 90(1)(b) when read on its own does not give rise to such a limitation, Marceau J.A. points to the presumption of consistent expression and concludes that the term “personal property” for purposes of this paragraph must also be read as excluding money. He adds that the word “always” in section 90 implies a form of personal property which “subsists and keeps its autonomy at least for a time” and that money does not have this character.

I cannot agree with Marceau J.A.’s reasoning for the following reasons:

a) First, there is no bar in law or in principle to the purchase of money with money and hence no basis for the suggestion that by definition the term “personal property” in paragraph 90(1 )(«) excludes money. In this regard, one need only think of the purchase of foreign currency with domestic dollars.

b) Second, whether or not Parliament actually contemplated personal property that is money when the Indian Act was introduced is of no significance. What is important is the statutory language used by Parliament which in this case embraces the notion of “personal property” without any express limitation as to its form or character.

C) Third, there is no basis for the suggestion that the wording of section 90 implies a form of personal property other than money. In this regard, I note that money, as any other fungible property, can be segregated in which case it maintains its character and identity in the sense alluded to by Marceau J.A. in his reasons.

I therefore do not believe that money per se can, as a matter of statutory interpretation, be excluded from the ambit of paragraph 90(1 )(«) and it follows that no such limitation can be read into paragraph 90( I )(/?).

Indian money can, amongst other things, be put to use by investing it, purchasing property or by exchanging it for services. When Indian money is used to purchase personal property, whether tangible or intangible, paragraph 90(1 )(«) provides, when read with the deeming provision embodied in the concluding phrase, that the property so purchased (and its replacement so long as it remains personal property) shall irrespective of its location, be deemed to be situated on the reserve.

It follows in my view that where for instance, Indian money is invested off reserve, [11] whether by the purchase of a money obligation or by merely depositing it in a bank account, the ensuing entitlement to the repayment, which in law constitutes personal property, [12] is deemed to be situated on the reserve. I see no basis in fact or in law for excluding such personal property from the ambit of paragraph 90(1)(a) or section 90 as a whole.

Per curiam*.

The appeal is allowed with costs and the impugned decision of the Tax Court is set aside. The matter is, however, referred back to the Tax Court for it to reopen the trial and to consider the question involved in the litigation that had been left aside, namely whether or not the Band is situate on a reserve.

Appeal allowed.