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Docket: 2004-3561(IT)G
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BETWEEN: |
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RONALD ROBERTSON, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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Counsel for the Appellant: |
J.R. Norman Boudreau |
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Counsel for the Respondent: |
Gérald L. Chartier |
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ORDER
The motion made by the respondent for an order seeking to strike out parts of the notice of appeal is denied. Costs of the motion shall be in the discretion of the trial judge.
Signed at Toronto, Ontario, this 8th day of March, 2006.
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"J. Woods" |
Woods J.
BETWEEN:
and
REASONS FOR ORDER
Woods J.
[1] Ronald Robertson, a status Indian and a member of Norway House Reserve, has appealed assessments of tax in respect of fishing income and employment insurance benefits. The assessments were made under the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.), as amended, and relate to the 1999, 2000, 2001 and 2002 taxation years.
[2] The appellant appeals the assessment on the basis that his fishing income and employment insurance benefits should be exempt from tax, either by virtue of section 87 of the Indian Act and paragraph 81(1)(a) of the Income Tax Act, or in the alternative by virtue of aboriginal and treaty rights.
[3] This is a motion brought by the respondent in the appeal to strike out the parts of the notice of appeal that relate to aboriginal and treaty rights. The respondent argues that it is plain and obvious that this ground of the appeal has no chance of success. An order is sought under either s. 58(1)(b) (no reasonable grounds for appeal) or s. 53(b) and (c) (frivolous and vexatious proceedings and an abuse of process) of the Tax Court of Canada Rules (General Procedure).
[4] The appellant carries on a commercial fishing operation in waters adjacent to his reserve. The fishing area, according to the appellant, has traditionally been available to and has been used by the Norway House Cree Nation as a source of food and income and this has resulted in the appellant having aboriginal and treaty rights to fish in these waters.
[5] The basis for the appellant's argument respecting aboriginal and treaty rights is summarised in the following excerpt from para. 7 of the appellant's written submission:
[...] The Appellant submits that he has aboriginal and treaty rights to engage in these activities in the area covered by Treaty 5 to which his First Nation is a signatory and in which his reserve is provided for without having his income from these activities restricted by the Respondent's taxation.
[6] According to the respondent, the appellant no longer has any aboriginal or treaty rights to fish commercially and therefore the appeal cannot possibly succeed on this basis. The position is summarized in the respondent's notice of motion as follows:
The paragraphs disclose no reasonable grounds for appeal as it is plain and obvious that the Appellant's aboriginal right to fish was extinguished and replaced by rights set out in Treaty No. 5, and further that any commercial fishing rights otherwise protected by Treaty No. 5 were subsequently extinguished by the Natural Resources Transfer Agreement, 1929 enshrined in the Constitution Act, 1930.
Analysis
[7] The essential argument of the respondent is that any aboriginal or treaty rights to fish commercially that the appellant may have had were clearly extinguished by a 1929 agreement between the federal government and the province of Manitoba.
[8] In 1930 the British North America Act was amended to give constitutional status to certain agreements entered into between the federal government and some of the provinces. As I understand it, the general purpose of the agreements was to transfer natural resources from the federal government to the contracting provinces. The relevant agreement for the present purposes is the agreement between the federal government and the province of Manitoba (the "Manitoba Transfer Agreement") which is in Schedule 1 to the Constitution Act, 1930 (formerly the British North America Act).
[9] The Manitoba Transfer Agreement includes provisions specifically applicable to Indians although they were not parties to the agreement. The provision that the respondent relies on is section 13 which reads:
13. In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.
[10] According to the respondent, this provision extinguishes all aboriginal or treaty rights that the appellant otherwise may have had to fish commercially.
[11] Section 13 has two elements. First it assures the Indians that they will continue to have the right to hunt and fish for food (i.e., non-commercial activities). This is not relevant in this motion because the appellant was engaged in commercial activities. The federal government also agrees that the general laws "respecting game" will be applicable to the Indians, subject to their overriding right to hunt and fish for food.
[12] The respondent acknowledges that section 13 does not explicitly state that rights to fish commercially are extinguished but counsel refers to a number of judicial decisions, many of which are decisions of the Supreme Court of Canada, in support of that proposition.
[13] Many of the decisions referred to by the respondent do make the statement that aboriginal and treaty rights are extinguished by section 13 or similarly worded provisions in agreements with other provinces. I note for example: R. v. Horseman, [1990] 1 S.C.R. 901, at page 933 (re the Alberta Wildlife Act); R. v. Badger, [1996] 1 S.C.R. 771, at para. 46 (re the Alberta Wildlife Act); R. v. Gladstone, [1996] 2 S.C.R. 723, at para. 38 (re British Columbia fishing regulations); and R. v. Gladue, [1995] A.J. 1116 (Alta. C.A.) at para. 12 (re Alberta fishing regulations).
[14] The problem that I have with relying on these decisions is that they all deal with provincial laws that specifically relate to the regulation of game. Section 13 specifically deals with these types of laws. It is not clear, though, that the decisions have any relevance to laws that do not relate specifically to game, such as the federal Income Tax Act.
[15] During the hearing, the respondent suggested that this reasoning misinterprets the appellant's argument. That is certainly possible but I do not think that this assists the respondent.
[16] It is not sufficient in a motion under s. 58(1)(b) or s. 53(b) and (c) for the moving party to respond only to specific arguments of the other party. The broad question that is raised by the notice of appeal is whether the appellant can rely on aboriginal or treaty rights to claim an exemption from federal income tax. In my view, a reference to section 13 of the Manitoba Transfer Agreement does not provide an obvious answer to that question.
[17] The onus on the party seeking to strike pleadings under these sections is high. Courts will not strike the pleadings unless the other party clearly has no chance of success: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 (S.C.C.). In my view, the respondent's argument does not meet this high threshold.
[18] I would also comment that I have limited my consideration of this matter to arguments raised by the respondent during the hearing. There may be other arguments in support of the respondent's position, but in the context of the present motion to strike pleadings I do not think that it is appropriate for me to pursue arguments that were not raised.
[19] Before concluding, I wish to comment briefly on an argument that the respondent raised for the first time at the end of argument. It was not raised in the material filed with the Court. The respondent submitted that this Court has no jurisdiction to award the relief sought by the appellant which is a declaration that the assessment contravenes the appellant's aboriginal and treaty rights. In light of the fact that this issue was not raised earlier, I do not think that it is appropriate for me to consider it in this motion.
[20] The respondent's motion is dismissed. Costs of the motion are in the discretion of the trial judge.
Signed at Toronto, Ontario, this 8th day of March, 2006.
COURT FILE NO.: 2004-3561(IT)G
STYLE OF CAUSE: Ronald Robertson and Her Majesty the Queen
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 16, 2006
REASONS FOR ORDER BY: The Honourable Justice Judith Woods
APPEARANCES:
Counsel for the Appellant: J.R. Norman Boudreau
Counsel for the Respondent: Gérald L. Chartier
COUNSEL OF RECORD:
Firm: Booth, Dennehy LLP
Winnipeg, Manitoba
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada