Pictou v. Minister of National Revenue, 2003 FCA 9
| Judge | Stone, Rothstein and Pelletier, JJ.A. |
| Court | Federal Court of Appeal (Canada) |
| Case Date | January 14, 2003 |
| Jurisdiction | Canada (Federal) |
| Citations | 2003 FCA 9;(2003), 299 N.R. 329 (FCA) |
Pictou v. MNR (2003), 299 N.R. 329 (FCA)
MLB headnote and full text
Temp. Cite: [2003] N.R. TBEd. JA.045
Vaughn Pictou (appellant) v. Her Majesty The Queen (respondent)
(A-423-00)
Roderick A. Googoo (appellant) v. Her Majesty The Queen (respondent)
(A-424-00)
Edward Googoo (appellant) v. Her Majesty The Queen (respondent)
(A-425-00)
Jo-Ann Toney-Thorpe (appellant) v. Her Majesty The Queen (respondent)
(A-426-00; 2003 FCA 9)
Indexed As: Pictou v. Minister of National Revenue
Federal Court of Appeal
Stone, Rothstein and Pelletier, JJ.A.
January 14, 2003.
Summary:
The fundamental issue in these appeals was whether the appellants, who are registered status Indians in Nova Scotia, were required to collect and remit Goods and Services Tax pursuant to Part IX of the Excise Tax Act on sales to non-Indian customers at their retail outlets situated on their respective reserves in the Province of Nova Scotia. The appellants challenged assessments against them, arguing that by a series of treaties made between the Mi'kmaq and the British authorities in Nova Scotia in 1760-61 they were immune from any obligation imposed by the Excise Act to collect and remit the tax on such sales.
The Tax Court of Canada dismissed the appeals. The appellants appealed again.
The Federal Court of Appeal dismissed the appeals.
Indians, Inuit and Métis - Topic 3
General - Duty owed to Indians by Crown - Duty to consult and accommodate - [See Indians, Inuit and Métis - Topic 4404 ].
Indians, Inuit and Métis - Topic 4404
Treaties and proclamations - Effect of - The appellants, who are registered status Indians in Nova Scotia, were assessed for Goods and Services Tax on sales to non-Indian customers at their retail outlets situated on their respective reserves - The appellants challenged the assessments, arguing that a trade clause contained in 1760-61 treaties between the Mi'kmaq and British authorities effectively immunized the Mi'kmaq from any legislation purporting to require them to collect and remit tax - The appellants argued further that a promise of peace and friendship contained in the treaties required the Crown to consult with, obtain the consent of, and accommodate the interests of the Mi'kmaq before imposing new burdens and obligations - The appellants argued finally that the Crown had a duty to consult with the Mi'kmaq before taking steps which might have the effect of infringing their trade right under the 1760-61 treaties - The Tax Court of Canada rejected the appellants' arguments - The Federal Court of Appeal affirmed the decision.
Indians, Inuit and Métis - Topic 4410
Treaties and proclamations - Interpretation - Trade clause - The Federal Court of Appeal referred to the principles applicable to treaty interpretation and used these principles to interpret a "trade clause" in treaties of peace and friendship made in Nova Scotia between the Mi'kmaq and British authorities in 1760-61 - See paragraphs 4 to 24.
Sales and Service Taxes - Topic 5224
Goods and services tax - Collection and enforcement - Persons obliged to collect - Indian bands, chiefs, corporations, etc. - [See Indians, Inuit and Métis - Topic 4404 ].
Cases Noticed:
R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 6].
R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 6].
R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 7].
Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, refd to. [para. 23].
Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 31].
Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 33].
R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 33].
Westbank First Nation et al. v. British Columbia (Minister of Forests) et al., [2000] B.C.T.C. 575; 191 D.L.R.(4th) 180 (S.C.), refd to. [para. 34].
Haida Nation v. British Columbia (Minister of Forests) et al. (2002), 164 B.C.A.C. 217; 268 W.A.C. 217 (C.A.), refd to. [para. 34].
TransCanada Pipelines Ltd. v. Beardmore (Township) et al. (2000), 137 O.A.C. 201; 186 D.L.R.(4th) 403 (C.A.), refd to. [para. 34].
Counsel:
D. Bruce Clarke, for the appellants;
Peter J. Leslie, for the respondent.
Solicitors of Record:
Burchell Green Hayman Parish, Halifax, Nova Scotia, for the appellants;
Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
These appeals were heard on November 6 and 7, 2002, at Halifax, Nova Scotia, before Stone, Rothstein and Pelletier, JJ.A., of the Federal Court of Appeal. Stone, J.A., delivered the following judgment for the court on January 14, 2003.
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...denied natural justice. Cases Noticed: Pictou v. Minister of National Revenue, [2003] T.C.J. No. 321 (T.C.C.), affd. [2003] 2 F.C. 737; 299 N.R. 329; 2003 FCA 9, leave to appeal denied (2003), 320 N.R. 392 (S.C.C.), refd to. [para. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S......
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...Treaty 8 and whether it contains a tax exemption: see, for ex., Bastien (Succession de) v R, 2011 SCC 38; Pictou v R, 2003 FCA 9. Such assertions are properly tested in the Tax Court, and the case law relied on by the appellant does not support the contrary proposition. ......
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R v Ochapowace Ski Resort Inc.,
...instance, they say Acadia was a duty to consult case and did not involve arguments about Aboriginal title. They note that Pictou v Canada, 2003 FCA 9, 299 NR 329, involved individuals who had claimed an exemption from the requirement to collect the GST on reserve on the basis of a treaty ri......
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Canada (Attorney General) v. Scow,
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Waycobah First Nation v. Canada (Attorney General), (2010) 378 F.T.R. 262 (FC)
...denied natural justice. Cases Noticed: Pictou v. Minister of National Revenue, [2003] T.C.J. No. 321 (T.C.C.), affd. [2003] 2 F.C. 737; 299 N.R. 329; 2003 FCA 9, leave to appeal denied (2003), 320 N.R. 392 (S.C.C.), refd to. [para. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S......
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Tax Topics – September 2011
...they were for “humanitarian” reasons. 6 2011 DTC 1144 (T.C.C.). 7 2011 UDTC 34 (T.C.C.). 8 2007 DTC 2092 (T.C.C). 9 See Pictou v. Canada, 2003 FCA 9. 10 2008 SCC 9. 11 See, for example, Abraham v. Canada, 2011 FC 638. 12 Paragraphs 23(3)(b) and 23(4)(e), respectively. 13 2011 FCA 191 at par......