Date: 20070307
Docket: T-2187-05
Citation:
2007 FC 259
Ottawa,
Ontario, March 7, 2007
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
THE ACADIA BAND
Applicant
and
THE MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This application for judicial review concerns a
decision of the Minister of National Revenue (the Minister) who, on July 28,
2003, denied a notice of objection to an assessment dated December 12, 2001.
The Notice of Assessment was issued under provisions of the Excise Tax Act
(R.S.C. 1985, c. E-15) (the Act) against the Applicant for failure to collect
GST/HST as required on sales to non-Indians. The uncollected taxes were attributable
retail sales at convenience stores located on reserve lands.
[2]
In 1997, the Applicant established its own
commodity-tax regime to raise revenues which were to be used to “fulfill the
communal sharing tradition by meeting community needs”. The Applicant maintains
that the initiative was an exercise of self-government that amounted to a
modern expression of the communal sharing tradition.
[3]
The Applicant claims that the imposition by the
Minister of the requirement to collect and remit GST/HST will prevent, and has
prevented, the Applicant from being able to exercise self-government to fulfill
or continue the communal sharing tradition to meet the needs of the community.
[4]
The Applicant further claims that the Respondent
has been aware since 1998 of the assertion by the Applicant that the
Respondent’s actions have the potential to infringe the Applicant’s right to
self-government and its ability to fulfill its obligations pursuant to the
communal sharing tradition.
[5]
The Applicant claims that since its asserted
aboriginal right potentially exists, the Minister was required to engage in a
process of consultation and accommodation concerning the application and
enforcement of the GST/HST provisions of the Act to Band controlled businesses.
It is the Applicant’s position that the Minister failed to do so. In the result
the Applicant claims that the Respondent breached its duty to consult and
accommodate the Applicant as contemplated in the decision of Haida Nation v.
British Columbia
(Minister of Forests), [2004] 3 S.C.R. 511. The
Applicant seeks an order from this Court which would require the Crown to
engage in a process of consultation and accommodation.
2. Background
facts
[6]
The Applicant, the Acadia Band (the Band), is a
band under the Indian Act (R.S., 1985, c. I-5), and comprises part
of the Mi’kmaq Nation. The Band is located on a reserve in south-western Nova Scotia and is governed by a Chief and
a Council of elders and councillors, known as the Acadia Band Council.
[7]
Part IX of the Excise Tax Act was enacted
in 1990 and beginning in 1991 the Goods and Services Tax (the GST) became
applicable to sales and services. It is a law of general application and
contains no provision for the exemption of Indians. The Harmonized Sales Tax
(HST) is also a tax of general application defined as the “harmonized tax
system” in subsection 277.1(1) of the Act.
[8]
In 1997 the Band Council passed the Acadia
Commodity Tax By-Law (the By-law) which required that all corporations and
businesses owned by the Acadia First Nation, that sold goods and provided
services on the Acadia First Nation reserve lands, collect a 9% tax on goods
sold to customers (the Commodity Tax), and remit the tax to the Acadia Band
Council. Section 30 of the By-Law provides that “… the Federal GST and HST and
any provincial sales tax shall not apply to transactions covered by this
By-law”. The rationale behind the provision was that businesses which were
required to collect and remit both the GST/HST and the Commodity Tax would be
rendered non-competitive and economically unviable. Further, Chief Deborah
Robinson of the Band attests that the By-law was passed to continue the Mi’kmaq
tradition of sharing and reciprocity.
[9]
The Applicant owned two retail convenience stores
located on reserve lands, “Your Winner’s World” and “Gold Reserve” from which
sales were made to both Indians and non-Indians.
[10]
Beginning in early 1998, the Minister began
enforcement procedures pursuant to Division VIII of Part IX of the Excise
Tax Act (R.S. 1985, c. E-15). The Minister notified certain suppliers that
they were not to sell to the Band-controlled businesses unless the latter
charged GST/HST. On February 23, 1998, Chief Robinson sent a letter to the
Minister asserting the Applicant’s position that the By-law was an “exercise of
the inherent right of self-government” and requested a meeting with the
Minister.
[11]
The Acadia Band Council retained an accounting
firm to assist in its attempts to engage the Minister in consultation. The
Applicant alleges that it dealt with relatively junior employees of the
Minister who only discussed terms for reimbursement of the sums due on a
going-forward basis. The discussions took place in the context of threatened
enforcement action. The Department of Finance had only been open to discuss its
own programs or initiatives concerning First Nations and taxes. The Applicant
contends that neither the Minister nor the Department of Finance had been
willing to engage in a discussion of rights-based issues.
[12]
The Respondent contends that the Minister’s
representatives had indeed been engaged in consultation with the Applicant. As
early as May 2002, meetings were held concerning the Applicant’s indebtedness.
Subsequent meetings were held on July 12, 2002, September 10, 2002, April 8,
2003, August 20, 2003, December 9, 2003, February 16, 2004, July 12, 2004,
December 14, 2004, and April 20, 2005. In addition to the meetings, numerous
letters were exchanged between the Applicant’s and the Respondent’s
representatives. The record shows however, that the exchanges between
representatives of the Minister and the Applicant essentially concerned
collection of the unpaid assessment.
[13]
By Notice of Assessment dated December 12, 2001,
the Applicant was assessed for failure to collect GST/HST as required under the
Act on sales to non-Indians. The Applicant filed a Notice of Objection dated
March 27, 2002, and by decision of an Appeals officer dated July 28, 2003, the
objection was dismissed and the assessment was confirmed. The Applicant
appealed this assessment to the Tax Court of Canada on October 30, 2003.
[14]
On December 12, 2005, the Applicant filed this
application for judicial review of the decision on behalf of the Minister to
enforce collection to taxes claimed as HST without meaningful consultation and
accommodation on the claims of the Band.
[15]
Since January 2005, due to pressure from the
Minister, and under protest, the Acadia Band Council directed its businesses to
collect HST, and not to collect the Band Commodity Tax any longer, since the
collection of both taxes would render the businesses uncompetitive.
3. The
Appeal Officer’s decision
[16]
In his decision of July 28, 2003, the Appeal
Officer denied the objection and confirmed the assessment of December 12, 2001.
The Appeals Officer summarized the Applicant’s two main arguments. First, that
the Act is discriminatory in that it imposes an obligation on Indian-owned
businesses to collect and remit GST/HST from non-Indian customers. Second, that
the same legislation violates the Charter rights of Band Members and offends
section 87 of the Indian Act. The Appeals Officer observed that
this case is analogous to Pictou v. Canada (C.A.), 95-3811-GST-G, [2003]
2 F.C. 737, 2003 FCA 9, wherein Justice Bowie reasoned that modern
methods of taxation do not offend 18th century treaties between the
British and the Mi’kmaq people because ‘taxation’ was a non-issue to either
party in the conduct of “traditional” trade at the time.
[17]
The Appeals Officer, relying on the Tax Court’s
decision, concluded that the assessment is well-founded and does not offend the
treaty rights of Band Members or section 87 of the Indian Act. He
further found that the Act does not discriminate against the Band because the
Band is operating a modern business that is taxed the same way as other modern
businesses operating in the same marketplace. That decision is before the Tax
Court of Canada and it is not the decision under review in this application.
This judicial review application concerns the issues raised below.
4. Issues
A. Was there a duty on the Crown to consult and
accommodate before requiring the Applicant to collect and remit the GST-HST
pursuant to the provisions of the Act?
B. If yes, was that duty breached in the
circumstances of this case?
5. Standard of Review
[18]
The first issue deals with the existence of the
duty to consult or accommodate. This is a question of law reviewable on the
standard of correctness. The second question involves an assessment of the
facts in particular circumstances to determine whether the legal duty to
consult and accommodate has been met. This is a mixed question of fact and law,
generally reviewable on the reasonableness standard. The Supreme Court in Haida
discussed the applicable standard of review of decisions involving the duty
to consult and accommodate in circumstances where aboriginal rights are
asserted. The following excerpts at paragraphs 61-62 of the Court’s reasons for
decision find application here:
On questions of
law, a decision-maker must generally be correct: for example, Paul v. British Columbia (Forest Appeals
Commission), [2003] 2 S.C.R. 585, 2003 SCC 55. On
questions of fact or mixed fact and law, on the other hand, a reviewing body
may owe a degree of deference to the decision-maker. The existence or extent of
the duty to consult or accommodate is a legal question in the sense that it
defines a legal duty. However, it is typically premised on an assessment of the
facts. It follows that a degree of deference to the findings of fact of the
initial adjudicator may be appropriate. The need for deference and its degree
will depend on the nature of the question the tribunal was addressing and the
extent to which the facts were within the expertise of the tribunal: Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Paul,
supra. Absent error on legal issues, the tribunal may be in a better
position to evaluate the issue than the reviewing court, and some degree of
deference may be required. In such a case, the standard of review is likely to
be reasonableness. To the extent that the issue is one of pure law, and can be
isolated from the issues of fact, the standard is correctness. However, where
the two are inextricably entwined, the standard will likely be reasonableness: Canada (Director of Investigation
and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
The process
itself would likely fall to be examined on a standard of reasonableness.
Perfect satisfaction is not required; the question is whether the regulatory
scheme or government action "viewed as a whole, accommodates the
collective aboriginal right in question": Gladstone, supra, at para. 170. What is required is not perfection, but
reasonableness. As stated in Nikal, supra, at para. 110, "in ...
information and consultation the concept of reasonableness must come into
play.... So long as every reasonable effort is made to inform and to consult,
such efforts would suffice." The government is required to make reasonable
efforts to inform and consult. This suffices to discharge the duty.
6. The
Law
[19]
The Supreme Court has recognized since its
decision in R. v. Sparrow, [1990] 1 S.C.R. 1075, that aboriginal people
are “entitled to be consulted about limitations on the exercise of treaty and
aboriginal rights.” The duty to consult was also confirmed in R. v. Marshall,
[1999] 3 S.C.R. 533 at paragraph 43.
[20]
In Taku River Tlingit First Nation v. British
Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, the Supreme Court elaborated on the duty to
consult in particular when the duty arises in respect to asserted Aboriginal
rights. At paragraph 25, the Chief Justice writing on behalf of the Court found
that “[t]he duty to consult arises when a Crown actor has knowledge, real or
constructive, of the potential existence of Aboriginal rights or title and
contemplates conduct that might adversely affect them.”
[21]
In Haida, the Supreme Court dealt with
the scope and content of the duty to consult and accommodate in the context of
an asserted right to Aboriginal title. The Court found that the scope of the
duty is proportionate to a preliminary assessment of the strength of the case
supporting the existence of the right or title, and the seriousness of the
potentially adverse effect upon the right or title claimed. In determining the
kind of duties that may arise in different situations, the Court adopted, at
paragraphs 42-45 of its reasons, the following approach which it deemed helpful
to the analysis:
Against this
background, I turn to the kind of duties that may arise in different
situations. In this respect, the concept of a spectrum may be helpful, not to
suggest watertight legal compartments but rather to indicate what the honour of
the Crown may require in particular circumstances. At one end of the spectrum
lie cases where the claim to title is weak, the Aboriginal right limited, or
the potential for infringement minor. In such cases, the only duty on the Crown
may be to give notice, disclose information, and discuss any issues raised in
response to the notice. "'[C]onsultation' in its least technical
definition is talking together for mutual understanding": T. Isaac and A. Knox,
"The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L.
Rev. 49, at p. 61.
At the other end
of the spectrum lie cases where a strong prima facie case for the claim is
established, the right and potential infringement is of high significance to
the Aboriginal peoples, and the risk of non-compensable damage is high. In such
cases deep consultation, aimed at finding a satisfactory interim solution, may
be required. While precise requirements will vary with the circumstances, the
consultation required at this stage may entail the opportunity to make
submissions for consideration, formal participation in the decision-making
process, and provision of written reasons to show that Aboriginal concerns were
considered and to reveal the impact they had on the decision. This list is
neither exhaustive, nor mandatory for every case. The government may wish to
adopt dispute resolution procedures like mediation or administrative regimes
with impartial decision-makers in complex or difficult cases.
Between these
two extremes of the spectrum just described, will lie other situations. Every
case must be approached individually. Each must also be approached flexibly,
since the level of consultation required may change as the process goes on and
new information comes to light. The controlling question in all situations is
what is required to maintain the honour of the Crown and to effect
reconciliation between the Crown and the Aboriginal peoples with respect to the
interests at stake. Pending settlement, the Crown is bound by its honour to
balance societal and Aboriginal interests in making decisions that may affect
Aboriginal claims. The Crown may be required to make decisions in the face of
disagreement as to the adequacy of its response to Aboriginal concerns. Balance
and compromise will then be necessary.
[22]
It is also useful to review the applicable legal
principles established in the jurisprudence in assessing the strength of the
asserted claim. The Supreme Court in R. v. Van der Peet, [1996] 2 S.C.R.
507, sets out a number of general principles for determining whether an
aboriginal practice, custom or tradition qualifies as a “right” pursuant to
section 35 of the Constitution Act, 1982. I summarize below my
understanding of certain principles articulated in Van der Peet which
are applicable to the instant case.
- Section 35 is to
be given a purposive interpretation (para. 21);
- Section 35 is to
be given a generous and liberal interpretation in favour of aboriginal
peoples (paras. 23-24);
- Since 1982,
Parliament has not been capable of extinguishing aboriginal rights (para.
28);
- In order to be
an aboriginal right an activity must be an element of a practice, custom
or tradition integral to the distinctive culture of the aboriginal group
claiming the right (para. 46);
- In order to
determine whether a claim meets the test of being integral to the
distinctive culture of the aboriginal group claiming the right, the court
must first correctly determine what it is that is being claimed (para.
51);
- The court must
bear in mind that the activities may be the exercise in a modern form of
practice, custom or tradition that existed prior to contact, and should
vary its characterization of the claim accordingly (para. 54);
- The time period
that a court should consider in identifying whether the right claimed
meets the standard of being integral to the aboriginal community claiming
the right is the period prior to contact between aboriginal and European
societies (para. 60).
7. Analysis
[23]
My first task is to correctly determine what it
is that is being claimed. The Applicant characterizes the asserted aboriginal
right as the “communal sharing tradition” of the Mi’kmaq, and which is an
element of self-government, integral to the distinctive culture of the Mi’kmaq.
The Applicant argues that it established its own commodity-tax regime, a self
generating revenue source that was intended to be used to fulfill the communal
sharing tradition by meeting community needs. The Applicant further contends
that the Respondent, by requiring that the Applicant pay the GST/HST pursuant
to the provisions of the Act, prevents the Applicant from being able to
exercise self-government to fulfill, or continue, the communal sharing
tradition to meet the needs of the community. The Applicant states that the Respondent
has been aware since 1998, that the Respondent’s actions have the potential to
infringe the Applicant’s right to self-government and its ability to fulfill
its obligation pursuant to the communal sharing tradition. In the view of the
Respondent, the Applicant is claiming the right to collect its own tax on the
sale
of goods occurring
on reserve lands to non-Indians in lieu of collecting and remitting the
GST/HST. Here, the impugned Crown action which allegedly infringes the asserted
right is manifested by the enforcement provisions required by the Act, which culminated
with the issuance of the Notice of Assessment against the Applicant. Put
differently, the impugned action is the actual application by the Crown of Part
IX of the Act to the Applicant.
[24]
The Respondent first contends that a final
determination of the Applicant’s asserted Aboriginal right is required to
resolve the issue before the Court. The Respondent maintains that Haida,
Taku and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005]
3 S.C.R. 388, were cases that concerned discretionary actions of the Crown.
Here, the Crown’s actions are dictated by statutory provision and therefore,
while the manner in which the Act is administered may be the subject of
consultation, whether the Applicant is subject to the legislation in the first
place can only be determined with a final determination of the Applicant’s
aboriginal rights.
[25]
I am of the view that, for the purposes of this
proceeding, I need not make a final determination as to whether the asserted
right is established. I am bound by the Supreme Court pronouncements in Haida
and need only be satisfied that the asserted right potentially exists in
order to then engage in an analysis of the scope and content of the duty to
consult.
Is the duty to consult and accommodate triggered in
this case?
[26]
The Applicant claims that communal sharing in its
community was an expression of aboriginal culture, and that this tradition of
the Mi’kmaq at the time of contact forms the basis of an assertion of an
aboriginal right, which right is incidental to self governance.
[27]
While the Supreme Court in Mikisew sets a
low evidentiary hurdle to establish the existence of an asserted right, which
triggers the duty of consult and accommodate, the burden is nonetheless on the
Applicant to establish the potential existence of the asserted aboriginal right
and the conduct that might adversely affect it. In the context of the instant
case, I agree with the Applicant that the following elements must be
established to trigger the Crown’s duty to consult and accommodate. These
requirements are consistent with the teachings of the jurisprudence reviewed
above:
(1) A practice, custom or tradition at the time
of contact that was integral to the distinctive culture of the Applicant;
(2) A current activity that is a modern
expression of that practice, custom or tradition – and, therefore, an exercise
of an aboriginal right protected by section 35 of the Constitution Act, 1982;
(3) Government action that impacts adversely on
that current activity; and
(4) Awareness on the part of the Crown of the
assertion by the Applicant that the current activity is an exercise of an
aboriginal right protected by section 35 of the Constitution Act, 1982,
and that the government action may infringe upon that right.
[28]
Part IX of the Act, which provides that a vendor
collect and remit the HST/GST to the Receiver General for Canada, came into force in 1991. The
parties do not dispute that the first expression to the Crown that a claim of
aboriginal rights was being asserted was the letter from Chief Deborah Robinson
to the Minister dated February 23, 1998. There is no doubt that the Crown would
have been made aware of the asserted right when that letter was received. The
evidence also establishes that the Crown would have been aware, at that time,
of the allegation by the Applicant that the Crown’s act to initiate enforcement
proceedings under Part IX of the Act and the issuance of Notice of Assessment,
may infringe upon the asserted right. However, the Crown adopts the position
that the application of the Act in no way impacts on the Applicant’s claim to
aboriginal rights of a sharing tradition.
[29]
I will now turn to the first two above-mentioned
requirements.
(1) A practice, custom or tradition at the time of contact
that was integral to the distinctive culture of the Applicant.
[30]
The jurisprudence teaches that the practice or
tradition upon which a claim to an Aboriginal right is based, must be assessed
in the context of the culture of the Aboriginal community asserting the right.
This involves an inquiry into the pre-contact way of life of a particular
aboriginal community, including its means of survival, its socialization
methods, its legal systems, and potentially, its trading habits. See R. v,
Sapier, [2006] SCC 54, at paragraph 45.
[31]
Here, there is sufficient evidence before the
Court to establish that there existed a practice, custom or tradition at the
time of contact that can be described as the “communal sharing tradition” that
was integral to the distinctive culture of the Mi’kmaq and by extension of the
Applicant.
[32]
Dr. Maura Hanrahan is a social anthropologist
with extensive experience in the field of Aboriginal studies, with Aboriginal
groups in Eastern and Central Canada. Her expertise is not disputed by the Respondent. Her evidence
before the Court consists of two studies, one entitled “Mi’Kmaq Leadership,
Governance and Social Structure in the Early Contact Period”. At page 11 of
this report she writes:
There is a
strong consensus in the literature that Mi’kmaq Chiefs used a co-operative,
rather than competitive system, to ensure that the material needs of all were
taken care of. Prior to and for some time after contact, Mi’kmaq provided for
themselves through a seasonal round of economic activities, including hunting,
fishing, and foraging; in this way, they maximized efficient exploitation of
the ecological diversity of Nova Scotia and beyond.
The
allocation of hunting territories, explained previously, was not the only way
in which Mi’kmaq, led by their Chiefs, demonstrated sharing and reciprocity.
LeClercq reported that responsibility for widows and orphans was one of the
duties of Chiefs. The practice was to assign these vulnerable people to “the
wigwams of the best hunters, in order that they may be supported and brought up
as if they were the children of the latter…”
Redistribution
was, then, one of things Chiefs were charged with. According to Abbé Pierre
Biard, it was the Chief’s “duty to provide dogs for the chase, canoes for
transportation, provisions, and reserves for bad weather and expedition”.
(Footnotes omitted.)
[33]
The Respondent does not dispute that such a
tradition existed among the band members, but takes the position that the
communal sharing tradition as described by the Applicant does not give rise to
rights of wealth acquisition or revenue generation.
[34]
For the purposes of the first requirement, I
find that there existed a practice, custom or tradition at the time of contact
now described as the “communal sharing tradition” that was integral to the
distinctive culture of the Applicant.
(2) A current activity that is a modern expression of that
practice, custom or tradition – and, therefore, an exercise of an aboriginal
right protected by section 35 of the Constitution Act, 1982;
[35]
The Applicant argues that the “communal sharing
tradition” manifests itself in a modern way by the establishment, in 1997, of
its own commodity-tax regime, a revenue source intended to meet community
needs. The Applicant argues that the Commodity Tax is a modern expression of
the tradition of “sharing and reciprocity”. The Applicant submits that the
Band-controlled businesses are operated solely to assist the people of the Band
and for the purpose of community development. The Acadia Band Council viewed
the tax as fulfilling its responsibilities and obligations as leaders of the
community in accordance with their community sharing tradition. The uses of the
tax revenues include payment of the following band expenditures:
·
Electricity bills and other utilities
·
Home repairs
·
Non-insured health care and dental care
·
Nursing services
·
Funerals
·
Providing housing, property taxes and mortgage
payments
·
Economic development grant program
[36]
The evidence shows that Elders and disabled Band
Members have their electricity bills paid for by the Band Council, are provided
food vouchers, and in some cases, medical care. The Band Council also funds
programs for special-needs education and the youth, allowing younger members to
participate in sports. Chief Robinson also attests that Band members on fixed
incomes depend on the Band Council for financial assistance to meet their basic
needs. This evidence, regarding the support offered by Band Council to its
members, is essentially not challenged by the Respondent.
[37]
The Applicant contends that as a matter of
aboriginal right, the Commodity Tax is paramount to the GST/HST. The tax
specifically excludes the operation of the GST/HST because the Band-controlled
businesses would be rendered uncompetitive and economically unviable were they
required to collect both the Commodity Tax and the GST/HST.
[38]
The Respondent argues that there is no logical
connection between the communal sharing tradition and the Commodity Tax. The
Respondent contends that the tradition is one that exists between Band Members
and does not give rise to rights of wealth acquisition or revenue generation.
Further, it states that the Applicant is effectively claiming that it has an
aboriginal right to trade with non-Indians free of any Crown regulation.
Finally, the Respondent contends that the application of the Excise Tax Act
to the Applicant in no way impacts on the Applicant’s claim to aboriginal right
of a tradition of sharing and reciprocity.
[39]
For the purpose of this application, I accept
that the “communal sharing tradition” is a practice or tradition at the time of
contact that was integral to the distinctive culture of the Applicant, as found
above. The Applicant argues that the Commodity Tax, which allows the Band Council
to raise revenues to allow it to fulfill and continue the “communal sharing
tradition”, is a modern expression of the tradition or practice and therefore,
an exercise of an aboriginal right. For the following reasons, I disagree with
the Applicant’s argument.
[40]
The jurisprudence of the Supreme Court teaches
that while the nature of the practice or tradition which founds the Aboriginal
right claim must considered in the context of the pre-contact distinctive
culture of the particular Aboriginal community, the nature of the right must be
determined in light of present day circumstances. See Sapier, above at
paragraph 48. The practice or tradition, along with its associated uses, must
be allowed to evolve. Chief Justice McLachlin explained in R. v. Bernard,
[2005] 2 S.C.R. 220 at paragraph 25, that “logical evolution means the same
sort of activity, carried on in the modern economy by modern means.”
(Emphasis added.) Here the tradition or practice which founds the claim is an
activity which involves the concept of giving or receiving from a common
account. The impugned legislation which is said to have the effect of
infringing the tradition or practice of “communal sharing” provides only for
the collection by vendors of a sales tax, the GST/HST, on sales affected to
non-Indians. The Act in no way prevents the Applicant from sharing its
resources with Band members. For there to be infringement, the practice or
tradition would also have to involve the concept of revenue raising or wealth
accumulation, then arguably the Applicant’s ability to raise revenues through
the Commidity Tax would be negatively affected. The evidence before the Court does
not support the conclusion that the practice or tradition of “communal sharing”
involved the concept of revenue raising or wealth accumulation. Dr. Hanrahan’s
evidence found again at page 11 of the above cited report appears to confirm
this view:
Chiefs amassed
surpluses through gifts and debt payments, but wealth accumulation was not part
of the Mi’kmaq ethos. Accordingly, academics agree that “(the Chief)
redistributed this surplus by helping those in need, by providing food for
social occasions such as feasts, ceremonies, and by supporting group-wide
activities…” (Footnotes omitted.)
[41]
The evidence supports a tradition or practice
which involved surpluses, and gifts to be redistributed amongst needy Band
members and used for other Band activities. There is simply no evidence to
indicate that the tradition or practice of “communal sharing” is in any way
related to the concept of amassing food or raising revenues of any kind for the
purpose of distribution and communal sharing. The evidence speaks of the
sharing of surpluses and gifts. While Counsel for the Applicant submits that
there is evidence of trade with non-Indians at the time of contact, no evidence
was brought to my attention which would support a conclusion that the
traditional activity of sharing included the notion of amassing or accumulating
wealth for the purpose of sharing. Further, there is no evidence that the
tradition or practice of “communal sharing” involved the participation of
non-Indians even as sources of surplus or gifts. Therefore, it cannot be said
that applicable provisions of the By-law requiring vendors to collect and remit
the Commodity Tax can equate to a modern means of expressing the “communal
sharing tradition”. In this context, one activity deals with distribution of
surpluses and gifts, the other activity involves collection of taxes or revenue
raising. Put differently the modern provisions of the By‑law cannot be
said to be a logical evolution of the same sort of activity involved in the
“communal sharing” tradition. There is simply no logical connection between the
two activities.
[42]
In conclusion, I find that the Commodity Tax is
not a current activity that is a modern expression of the practice, custom or
tradition of “communal sharing” and is consequently not an exercise of an
aboriginal right protected by section 35 of the Constitution Act, 1982. It
follows, therefore, that the provisions of the Act imposing an obligation on
vendors to collect and remit GST/HST from sale to non-Indians do not infringe
the Applicant’s aboriginal rights. In the result, the Crown’s duty to consult
and accommodate is not engaged in the circumstances.
[43]
Given my above conclusion it is unnecessary to
consider the second issue raised in this application.
[44]
For the above reasons the application for
judicial review will be dismissed with costs.
ORDER
THIS
COURT ORDERS that:
1. The
application for judicial review of the decision on behalf of the Minister to
enforce collection to taxes claimed as HST without meaningful consultation and
accommodation on the claims of the Band is dismissed with costs to the
Defendants.
“Edmond P.
Blanchard”
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