Canada v. Benoit, 2003 FCA 236 (2003)
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Canada v. Benoit, 2003 FCA 236 (2003)
Date: 20030611
Docket: A-47-02Citation: 2003 FCA 236CORAM: STONE J.A.NADON J.A.EVANS J.A.BETWEEN:HER MAJESTY THE QUEEN IN RIGHT OF CANADAAppellantandCHARLES JOHN GORDON BENOIT, ATHABASCA TRIBALCORPORATION, LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL,KEE TAS KEE NOW TRIBAL COUNCILRespondentsandTHE ATTORNEY GENERAL OF THE PROVINCE OF ALBERTAPursuant to s. 57 of the Federal Court ActHeard at Ottawa, Ontario, on November 19, 20 and 21, 2002Judgment delivered at Ottawa, Ontario, on June 11, 2003REASONS FOR JUDGMENT BY: NADON J.A.CONCURRED IN BY: STONE J.A.EVANS J.A.Date: 20030611Docket: A-47-02Citation: 2003 FCA 236CORAM: STONE J.A.NADON J.A.EVANS J.A.BETWEEN:HER MAJESTY THE QUEEN IN RIGHT OF CANADAAppellantandCHARLES JOHN GORDON BENOIT, ATHABASCA TRIBALCORPORATION, LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL,KEE TAS KEE NOW TRIBAL COUNCILRespondentsandTHE ATTORNEY GENERAL OF THE PROVINCE OF ALBERTAPursuant to s. 57 of the Federal Court ActREASONS FOR JUDGMENTNADON J.A.[1] This is an appeal of a decision of the Trial Division, 2002 FCTD 243, dated March 7, 2002, which held that Treaty Number 8 (the "Treaty") signed between the Crown and the Cree and Dene peoples (the "Aboriginal signatories") in 1899 included a promise to the Aboriginal signatories that they would not have any tax imposed upon them at any time for any reason. The learned judge's judgment reads as follows:For the reasons provided, I declare that:(a) the Plaintiffs are entitled to claim the benefits of Treaty No. 8, including the Treaty Right not to have any tax imposed upon them at any time for any reason;(b) the Treaty Right was not extinguished prior to April 17, 1982; and is now protected from extinguishment by the Constitution Act, 1982 and is binding on Canada to honour and uphold;(c) the imposition of any tax by Canada on the Plaintiffs is an unjustified breach of the Treaty Right.I also declare that:The application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982 , Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.[2] At issue in this appeal is Treaty Number 8, one of eleven treaties concluded between 1871 and 1923 between the Crown and various Aboriginal peoples as a means of facilitating settlement of Western Canada. The Treaty, made on June 21, 1899, at Lesser Slave Lake, and the Adhesions thereto taken subsequently at other locations, involved the surrender of vast districts of land in what is now Alberta, Saskatchewan, British Columbia and the Northwest Territories. As a quid pro quo for the surrender of the land, the federal Crown made a number of commitments to the Aboriginal signatories, namely to provide the bands with reserves, schools, annuities, farm equipment, ammunition and relief in times of famine or pestilence. Further, the federal Crown guaranteed to the Aboriginal signatories their rights of hunting, trapping and fishing. In that regard, the relevant part of the Treaty provides as follows:And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.[3] The Treaty also provides that each Aboriginal can elect to receive a separate 160-acre parcel of land instead of being part of a group reserve allotment:And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such bands as desire reserves, the same not to exceed in all one square mile for each family of five for such number of families as may elect to reside on reserves, or in that proportion for larger or smaller families, and for such families or individual Indians as may prefer to live apart from band reserves. Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each Indian, the land to be conveyed with a proviso as to non-alienation without the consent of the Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to be made in the manner following, namely, the Superintendent General of Indian Affairs shall depute and send a suitable person to determine and set apart such reserves and lands, offer consulting with the Indians concerned as to the locality which may be found suitable and open for selection.[4] There is no mention in the Treaty of a promise exempting the Aboriginal signatories from taxation.[5] Notwithstanding that the Treaty is silent with respect to the Aboriginal signatories' right to be exempted from taxation and his find...See the full content of this document
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