Date:
20080402
Docket:
A-180-07
Citation:
2008 FCA 119
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
RYER
J.A.
BETWEEN:
ACADIA BAND
Appellant
and
MINISTER OF NATIONAL
REVENUE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Halifax, Nova Scotia, on April 2,
2008)
[1]
This is an
appeal from a decision of Blanchard J. of the Federal Court (2007 FC 259)
dismissing the application for judicial review by the Acadia Band of a decision
of the Minister of National Revenue (the “Minister”) in a letter dated November
10, 2005, declining to meet with the Chief of the Acadia Band with respect to a
GST/HST assessment that was made against the Acadia Band, pursuant to Part XI
of the Excise Tax Act, R.S., 1985, c. E-15 (the “GST/HST Legislation”).
[2]
The
appellant passed a By-law which provided for the imposition of a tax (the
“Acadia Commodity Tax”) of 9% of the total sale of goods and services provided
by a vendor on reserve lands. The By-law provided that “the Federal GST and HST
and any provincial sales tax shall not apply to transactions covered by this
By-law”. Subsequent to the enactment of the By-law, the appellant stopped
collecting and remitting GST/HST on transactions undertaken by it through two
on-reserve businesses. Instead, those businesses charged the Acadia Commodity
Tax on transactions undertaken on the reserve with non-Aboriginals. Revenues
generated by the Acadia Commodity Tax were to be used to fulfil the Mi’kmaq
tradition of sharing and reciprocity (the “Communal Sharing Tradition”).
[3]
The
Minister assessed approximately $1.8 million of GST/HST, interest and penalties
(the “Assessment”) against the appellant for failing to collect and remit
GST/HST during the period from January 1, 1999 to March 31, 2001. An appeal
against the Assessment is scheduled to be heard by the Tax Court of Canada. The
period from the date that the appeal was filed by the Acadia Band to the
present date is referred to by the appellant as the Interim Period.
[4]
The
appellant contends that the Minister had a duty to consult with the appellant
in the Interim Period prior to undertaking any collection activities with
respect to the Assessment. Some dialogue occurred between the appellant and the
Minister before the end of 2005, mostly having to do with the Minister’s
objective of collecting the amount specified in the Assessment.
[5]
By
correspondence dated March 11, 2005, the appellant formally sought to engage
the Minister’s constitutional obligations, referring to the decision in Haida
Nation. v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511,
2004 SCC 73, and section 35 of the Constitution Act, 1982, 1982, c. 11,
Schedule B (U.K.), 1982, c. 11 (the “Constitution Act”) and
requesting a meeting with the Minister to “consult, reconcile and accommodate
their exercise of Aboriginal Self Government (i.e. the Acadia Commodity Tax)”.
[6]
By
correspondence dated November 10, 2005, the Minister formally declined to meet with
the appellant and to engage in consultations of the type requested by the
appellant.
[7]
On
December 12, 2005, the appellant made an application for judicial review of the
Minister’s refusal to engage in the consultations that had been requested. In
that application, the appellant sought declarations that the Minister had a
duty to consult and accommodate the appellant in connection with its Communal
Sharing Tradition and in particular, in regard to the purposes and operation of
the Commodity Tax and the impact on the appellant’s Aboriginal rights of
decisions taken by the Minister under the GST/HST Legislation. In addition, the
appellant sought orders in the nature of mandamus to require the
Minister to comply with the declaratory relief that was requested.
[8]
In the
grounds supporting the application for judicial review, the appellant stated
that the Minister has neither provided meaningful consultation to the appellant
nor accommodated the Communal Sharing Tradition in taking decisions under the
GST/HST Legislation. In addition, the appellant stated that the refusal of the
Minister to so consult or to accommodate was contrary to the principles of
fundamental justice and procedural fairness, and, as well, constituted a breach
of the Aboriginal procedural right to be consulted and accommodated, and to
have substantive rights reconciled with the actions of the Minister.
[9]
In
reaching its decision, the Federal Court referred to Haida and Taku
River Tlingit First Nation v. British Columbia (Project
Assessment Director) [2004] 3 S.C.R. 550 and determined that the duty to
consult arises when the Crown has actual or constructive knowledge of the
potential existence of a credibly asserted Aboriginal right and contemplates
conduct that might adversely affect that right. The Federal Court then referred
to R. v. Van der Peet, [1996] 2 S.C.R. 507, as relevant jurisprudence in
relation to the question of whether an Aboriginal practice, custom or tradition
qualifies as a “right” of the type contemplated by section 35 of the Constitution
Act. The Federal Court further held that such a right would consist of a
current activity that is a modern expression of a practice, custom or tradition
integral to the distinctive culture of the Aboriginal group claiming the right.
[10]
The Federal
Court stated that the Acadia Band characterized the asserted right as the
Communal Sharing Tradition and that the Acadia Commodity Tax was intended to be
used to fulfil that tradition. The Federal Court found that the Acadia Band had
a low evidentiary burden to meet to establish that it had asserted the
existence of a credible Aboriginal right. The Federal Court concluded that the
Acadia Band had adduced enough evidence to establish the existence of the
Communal Sharing Tradition at the time of the contract, but that there was no
evidence that the tradition extended to or encompassed revenue raising or
wealth accumulation or activities involving non-Aboriginals. As a consequence,
the Federal Court held that the Acadia Band had failed to establish that the
Acadia Commodity Tax is a modern expression of the Communal Sharing Tradition
and accordingly, that the Acadia Band had not established the potential
existence of a credible Aboriginal right protected by section 35 of the Constitution
Act.
[11]
Notwithstanding
the appellant’s argument to the contrary, we are in agreement with the
conclusion of the Federal Court that there was no evidence the Acadia Commodity
Tax was a modern expression of the Communal Sharing Tradition and accordingly,
that the appellant failed to establish the potential existence of a credible
Aboriginal right protected by section 35 of the Constitution Act.
[12]
The
appellant further argues that the Federal Court erred by failing to restrict
itself to the consultation issue in relation to the Interim Period. The
appellant contends that by considering the imposition of the Acadia Commodity
Tax to sales to non-Aboriginals, the Federal Court was addressing the issue
that is to be decided by the Tax Court of Canada, namely whether the Assessment
violates the appellant’s substantive Aboriginal rights. We are of the view that
this argument cannot succeed. The Federal Court considered sales to
non-Aboriginals in the course of determining whether the Acadia Commodity Tax
is a modern expression of the Communal Sharing Tradition and made no reviewable
error in so doing. The validity of the Assessment remains to be dealt with by
the Tax Court of Canada.
[13]
Accordingly,
for the foregoing reasons, the appeal will be dismissed with costs.
“C.
Michael Ryer”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-180-07
APPEAL FROM A DECISION OF THE FEDERAL
COURT DATED MARCH 7, 2007 DOCKET NO. T-2187-05
STYLE OF CAUSE: ACADIA BAND v. MINISTER OF NATIONAL DEFENCE
PLACE OF HEARING: Halifax,
Nova Scotia
DATE OF HEARING: April 2, 2008
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
OF THE COURT BY: EVANS J.A.
RYER
J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
|
D. Bruce Clarke
|
FOR THE APPELLANT
|
|
John W.
Smithers
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Burchell Hayman
Parish
Halifax, Nova Scotia
|
FOR THE
APPELLANT
|
|
John H. Sims
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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