Aboriginal Taxation, Treaty 8 and others

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Aboriginal Taxation – Effect of Treaty 8, Royal Proclamation on 1763, and the United Nations Declaration on the Rights of Indigenous Peoples

Laboucan v The Queen, 2013 TCC 357

The taxpayer, like others argued that income of aboriginal persons, whether on or off reserve, is exempt from taxation. Reliance was placed on Treaty 8, The Royal Proclamation of 1763, the Charter of Rights and Freedoms, the United Nations Declaration on the Rights of Indigenous Peoples and the Supreme Court of Canada mandated duty to consult on issues relating to the rights of native peoples.

The Crown brought a motion to strike on the basis of a lack of reasonable grounds of appeal and, in part, the remedy being outside of the TCC’s jurisdiction. The court granted the motion.

The Court held:

    • Treaty 8 was fund not to contain a tax exemption: see Canada v. Benoît, 2003 FCA 236; Dumont v. The Queen, 2005 TCC 790; Tuccaro v. The Queen, 2013 TCC 300; NOTE the FCA in Tuccaro v The Queen, 2014 FCA 184, determined that the FCA decision in Benoit has no presidential value as it was a based on a finding of fact and not of law.
    • The Royal Proclamation of 1763 does not contain any income tax exemption other than those granted in treaties;
    • The duty to consult is not something that the TCC has jurisdiction over; see Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73; Acadia Band v. M.N.R., 2007 FC 259;
    • The duty to consult in relation to Income Tax assessments in accordance with the ITA does not require more than the CRA audit review and proposed reassessment procedure: see Sackaney v. The Queen, 2013 TCC 303; Hester v. The Queen et al, 2007 CanLII 52015, aff’d: Hester v. Canada, 2008 ONCA 634;
    • The United Nations Declaration on the Rights of Indigenous Peoples has been signed by Canada but has not been ratified by the Canadian Parliament

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