Pictou v. Canada (C.A.) [2003] 2 F.C. 738
Date: 20030114
Docket: A-423-00
A-424-00
A-425-00
A-426-00
Neutral citation: 2003 FCA 9
CORAM: STONE J.A.
BETWEEN: A-423-00
VAUGHN PICTOU
Appellant
and
HER MAJESTY THE QUEEN
Respondent
AND BETWEEN: A-424-00
RODERICK A. GOOGOO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
AND BETWEEN: A-425-00
EDWARD GOOGOO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
AND BETWEEN: A-426-00
JO-ANN TONEY-THORPE
Respondent
and
HER MAJESTY THE QUEEN
Respondent
Heard at Halifax, Nova Scotia, on November 6 and 7, 2002.
Judgment delivered at Ottawa, Ontario, on January 14, 2003.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
PELLETIER J.A.
Date: 20030114
Docket: A-423-00
A-424-00
A-425-00
A-426-00
Neutral citation: 2003 FCA 9
CORAM: STONE J.A.
BETWEEN: A-423-00
VAUGHN PICTOU
Appellant
and
HER MAJESTY THE QUEEN
Respondent
AND BETWEEN: A-424-00
RODERICK A. GOOGOO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
AND BETWEEN: A-425-00
EDWARD GOOGOO
Appellant
and
HER MAJESTY THE QUEEN
Respondent
AND BETWEEN: A-426-00
JO-ANN TONEY-THORPE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] The fundamental issue in these appeals is whether the appellants, who are registered status Indians in Nova Scotia, are required to collect and remit Goods and Services Tax pursuant to Part IX of the Excise Tax Act, S.C. 1990, c. 45, on sales to non-Indian customers at their retail outlets situate on their respective reserves in the province of Nova Scotia. The appellants contend that by a series of treaties made between the Mi'kmaq and the British authorities in Nova Scotia in 1760-61 they are immune from any obligation imposed by that statute to collect and remit the tax on such sales.
[2] By assessments dated February 12, 1993 (Roderick A. Googoo), May 16, 1993 (Jo-Ann Toney-Thorpe), May 16, 1995 (Vaughn Pictou), and December 1, 1995 (Edward Googoo), the respective appellants were assessed by the respondent for amounts of Goods and Services Tax that they had failed to collect and remit, as well as for penalties. Each of these assessments were challenged in the Tax Court of Canada where the appeals were dismissed by judgments dated May 29, 2002. These judgments are under appeal herein. The retail businesses of the appellants were of a like kind differing only in extent. Vaughn Pictou ran a gas bar on the Yarmouth Reserve; Edward Googoo and Roderick A. Googoo operated contiguous gas bars and convenience stores on the Whycocomagh Reserve; Jo-Ann Toney-Thorpe ran a convenience store on the Cambridge Reserve. During the relevant periods, sales to non-Indian customers at these various retail outlets ranged from $26,000 to $159,000 per month.
Arguments at trial
[3] The appellants raised four distinct points of arguments at trial. They contended that a trade clause contained in 1760-61 treaties between the Mi'kmaq and British authorities in Nova Scotia had the effect of immunizing the Mi'kmaq from any legislation purporting to require them to assist the respondent in collecting tax on sales made to non-Indian customers in the course of trade. They further contended that apart from the trade clause the 1760-61 treaties, being treaties of peace and friendship, had the effect of immunizing the Mi'kmaq from any legislation that imposed new burdens upon them unless the Mi'kmaq were first consulted and agreed to the imposition of such burdens before they were imposed. Finally, the appellants contended that they are exempt from the obligation to collect and remit taxes by virtue of section 87 of the Indian Act, R.S.C. 1985, C. I-5, and in any event that section 89 of that statute protects their property on the reserves from seizure by the respondent. His Honour Judge Bowie of the Tax Court of Canada rejected all of these arguments, the last two of which are not being pursued in this Court.
The trade clause
[4] The trade clause in issue is contained in treaties of peace and friendship made in Nova Scotia between the Mi'kmaq and British authorities in 1760 and 1761. Before these treaties were concluded, in mid-February 1760 the Passamaquody and St. John's River [Maliseet] Indians of present day New Brunswick travelled to Halifax with a view to concluding a treaty of peace and friendship with the British colonial authorities, which was signed on February 23, 1760. At the end of the same month, Paul Laurent of La Have and Michael Augustine of Richibucto, Mi'kmaq Chiefs, arrived in Halifax with the same object in view. The Tax Court Judge commented on this endeavour at paragraph 19 of his reasons:
The terms of the treaties just concluded with the Maliseet and the Passamaquody were communicated to them, and they indicated to the Colonial Governor that the Mi'kmaq would be willing to accept the same conditions. Treaties with the Mi'kmaq were in fact concluded upon the same terms as those with the Maliseet and Passamaquody. The British intended to enter into a comprehensive treaty with the various Mi'kmaq villages. This comprehensive treaty was never concluded, but the villages did all enter into treaties on the same terms, including the clause as to trade and truckhouses.
[5] A Treaty of Peace and Friendship between Paul Laurent and Governor Charles Lawrence of Nova Scotia, signed on March 10, 1760, contains the following undertaking by Laurent:
And I do further promise for myself and my tribe that we will not either directly or indirectly, assist any of the Enemies of His most Sacred Majesty King George the Second, his heirs or Successors, nor hold any manner of commerce traffick nor intercourse with them, but on the Contrary, will as much as may be in our power discover & make known to His Majesty's Governor any ill designs which may be formed or contrived against His Majesty's subjects. And I do further engage that we shall not traffick, barter or Exchange any commodities in any manner, but with such persons or the managers of such Truck houses and shall be appointed or Established by His Majesty's Governor at Lunenbourg or Elsewhere in Nova Scotia or Accadia.
(emphasis added)
The emphasized language is sometimes referred to as the "trade clause". A Treaty of Peace and Friendship containing identical terms between Governor Lawrence and Michael Augustine, was signed March 10, 1760. As the Tax Court Judge indicated, the various Mi'kmaq villages in Nova Scotia subsequently entered treaties on the same terms including the trade clause. Thus a treaty with the Mi'kmaq of Cape Breton was entered into on June 25, 1761. None of these treaties make any reference to the Mi'kmaq accepting an obligation to pay or collect any tax imposed by the British authorities. By their terms, the Mi'kmaq "acknowledged the jurisdiction and Dominion" of the British monarch "over the territories of Nova Scotia or Acadia and do make submission to His Majesty in the most perfect, ample and solemn manner" and agreed that settlement of disputes be not by "private satisfaction or Revenge" but "according to the Laws established in His Majesty's Dominions".
[6] The Supreme Court of Canada had occasion to consider the scope of the 1760-61 trade clause in R. v. Marshall, [1999] 3 S.C.R. 456. As Binnie J. there noted for the majority, at paragraph 29, the "genesis of the Mi'kmaq trade clause is...found in the Governor's earlier negotiations with the Maliseet and Passamaquody First Nations", when the Chiefs of those First Nations requested and the British agreed to establish, "a truckhouse...for the furnishing them with necessaries, in Exchange for their Peltry", which the Crown was honour bound to do. The treaties themselves made no mention of the right to fish. The task facing the Court, as was articulated by Lamer J. (as he then was) in R. V. Sioui, [1990] 1 S.C.R. 1025 at 1069, was to "choose from among the various possible interpretations of common intention the one which best reconciles" the interests of the Mi'kmaq and of the Crown at the time the treaties were made. In Binnie J.'s view, at paragraph 35, the "trade clause would not have advanced British objectives (peaceful relations with a self-sufficient Mi'kmaq people) or Mi'kmaq objectives (access to European 'necessaries' on which they had come to rely) unless the Mi'kmaq were assured at the same time of continued access, implicitly or explicitly, to wildlife to trade". Binnie J. then turned to a consideration of the extrinsic evidence, stating at paragraph 58:
The recorded note of February 11, 1760 was that 'there might be a Truckhouse Established, for the furnishing them with necessaries' (emphasis added). What is contemplated therefore is not a right to trade generally for economic gain, but rather a right to trade for necessaries. The treaty right is a regulated right and can be contained by regulation within its proper limits.
He drew from this evidence the existence of an implied term that the Mi'kmaq had a right under the treaties to fish and hunt for the products they had by the treaties a right to trade with the British authorities in exchange for "necessaries".
[7] As is apparent, the Tax Court Judge well understood that the treaties in issue were to be interpreted in their historical context, as was laid down in recent decisions of the Supreme Court of Canada including Marshall, supra. At paragraph 28 of his reasons, he quoted Cory J. in R. v. Badger, [1996] 1 S.C.R. 771, at paragraph 52, that "...when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing". Cory J. also pointed out that "treaties...recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement", and that they were "drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines". There was thus a need for sensitivity to cultural and linguistic differences between the parties in interpreting the language of a treaty. In Marshall, supra, Binnie J. drew attention, at paragraph 13, to views of Lamer J. in Sioui, supra, at 1068, that "[t]he historical context, which has been used to demonstrate the existence of the treaty, may equally assist us in interpreting the extent of the rights contained in it".
Historical and contextual evidence
[8] The trial record consists in large measure of a voluminous record of historical documents from archival and published sources, the authenticity of which was accepted by the parties. As this record reveals and as the Tax Court Judge observed at paragraphs 12 and 13 of his reasons, the treaty-making process between the British and the Mi'kmaq was well underway by 1725 when the British met at Boston with the Penobscot, who represented the Abenaki of what is now the state of Maine, the Maliseet of what is now southwestern New Brunswick, and the Mi'kmaq of Nova Scotia. Present at these negotiations on behalf of Nova Scotia was Paul Mascarene, a member of His Majesty's Council. The negotiations resulted in a treaty dated December 15, 1725 affecting the Mi'kmaq in Nova Scotia, which was ratified on June 11, 1726 at Annapolis Royal. By this treaty the Mi'kmaq made "our Submission to His said Majesty in as Ample a manner as we have formerly done to the Most Christian King", and agreed that "any misunderstanding Quarrell or injury" should not be for "private Revenge" but "for Redress according to his Majesty's Laws". The treaty made no provision for trade with the Indians nor for taxation.
[9] On August 15, 1749, immediately after Halifax was founded and became the new centre of government for Nova Scotia, representatives of the St. John's Indians agreed with Governor Edward Cornwallis to renew and confirm the December 15, 1725 treaty made at Boston. The renewal proved ineffectual, and relations grew so sour between the Mi'kmaq and the British authorities at Halifax that in October of the same year the latter took the unusual step of authorizing the temporary expedient of a bounty "for every Indian Micmac taken or killed". Hostilities between the British and the Mi'kmaq were obviously not conducive to promotion of British settlement in the province. At the same time, the British were anxious to wean the Mi'kmaq away from the influence of the French of what is now Cape Breton and Prince Edward Islands and Acadians of peninsular Nova Scotia.
[10] Later, in November 1752, the British authorities in Nova Scotia entered into a treaty with the Mi'kmaq of Shubenacadie who were represented by Jean Baptise Cope. That treaty contained a trade clause reading in part:
It is agreed that the said Tribe of Indians shall not be hindered from but have free liberty of Hunting and Fishing as usual and that if they shall think a Truck House needfull at the River Chibenaccadie, or any other place of their resort they shall have the same built and proper Merchandize lodged therein to be exchanged for what the Indians shall have to dispose of and that in the mean time the said Indians shall have free liberty to bring for Sale to Halifax or any other Settlement within the Province Skins, Feathers, Fowl, Fish or any other thing they shall have to sell where they shall have liberty to dispose of to their best Advantage.
As Cope was not generally authorized to enter the treaty it seems not to have survived subsequent hostilities which continued to punctuate relations between the Mi'kmaq and the British in Nova Scotia. The treaty was silent as to taxation of the Mi'kmaq.
[11] On February 11, 1760, during their visits to Halifax, Indian Chiefs of the Maliseet (St. John's River) and Passamaquody Tribes attended a Council at the Governor's House to negotiate the above mentioned treaty of peace and friendship. This treaty "renewed and confirmed" the December 15, 1725 treaty and required that the Indians "Trafic and barter and exchange Commodities with the managers of such Truckhouses as shall be established for that purpose by His Majesty's Governors of this Province". The record of the February 11, 1760 meeting includes the following:
His Excellency then demanded of them, Whether they were directed by their Tribes, to propose any other particulars to be Treated upon at this Time to which they replied that their Tribes had not directed them to propose any thing further than there might be a Truckhouse Established, for the furnishing them with necessaries, in Exchange for their Peltry, and that it might, at present, be at Fort Frederick.
Upon which His Excellency acquainted them that in case of their now executing a Treaty in the manner proposed, and its being ratified at the next General Meeting of their Tribes the next Spring, a Truckhouse should be established at Fort Frederick, agreeable to their desire, and likewise at other Places if it should be found necessary, for furnishing them with such Commodities as shall be necessary for them, in Exchange for their Peltry & that great care should be taken, that the Commerce at the said Truckhouses should be managed by Persons on whose Justice and good Treatment, they might always depend; and that it would be expected that the said Tribes should not Trafic or Barter and Exchange any Commodities at any other Place, nor with any other Persons. All of which the Chiefs expressed their entire Approbation.
(emphasis added)
As the Tax Court Judge found at paragraph 19 of his reasons, the terms of the treaty between the Passamaquody and Maliseet and the British were "communicated" to Chiefs Laurent and Augustine and that they indicated their willingness "to accept the same conditions".
[12] In a letter dated May 11, 1760, Governor Charles Lawrence of Nova Scotia reported to the Lords Commissioners of Trade and Plantation on the treaty negotiations of the previous February with the St. John's River and Passamaquody Indians as follows, with respect to the issue of trade:
...two Deputies of the tribes of St. John's River and Passamaquady Indians came here to ask for Peace which I concluded with them, and in a few days afterwards made a Peace on the same terms, with the Tribes of Richbuctou, Musquadaboit and La Heve, who sent their Chiefs here for that purpose. One of the Chief Articles in these Treaties, is that of Commerce, on which the Furr trade is established. In settling this Article; I took particular care to shew and convince them, how much more profitable and beneficial the English trade wou'd prove to them than the French, by receiving from us a higher price for their Furrs and the cheapness of the Commodities we give in Exchange, and in order to draw the greatest advantage from this Article, which is the friendship of these Indians, all private trade is excluded, and none to be carried on, but in Truckhouses established by the Government; where they will be dealt with on fair terms, according to the prices establish'd...
It thus appears that the British saw trading with the Indians as a means of promoting peace and friendship.
[13] In fact, on February 14, 1760 at Halifax, a list was laid before the Council "of the several Articles that the Indians...would have occasion for at the Truckhouse", at which time the Indian Chiefs present "were consulted upon the Price that should be set upon each Article, to be paid for in Beaver and the same, together with the Price of their Beaver, was Settled very much to their Satisfaction". Two days later, on February 16, 1760, the Indians agreed to the prices of their own products of trade including beaver, marten, otter, mink, bear, fox, seals, moose, deer, ermine and bird feathers. Prices for European goods ("necessaries") were agreed upon at the same meeting. As is apparent, the creation of the Truckhouse system for trading with the Mi'kmaq came at a cost to the colonial government, a fact that was acknowledged by Governor Lawrence in a message to the House of Assembly dated February 18, 1760, when he stated:
You are Sensible Gentlemen, These Desirable Ends Cannot be accomplished without some Expence, Truck Houses must be Erected, Presents made, Commodities to be barter'd for, Purchased; a Commissary and Truck master appointed and paid etc., the Charge of all which in the beginning must be advanced, if not Supported by the Publick...
Expert evidence
[14] The appellants called two expert witnesses, Dr. John G. Reid, a professor of History at Saint Mary's University and Dr. William C. Wicken, an assistant professor of History at York University. The respondent called Dr. Stephen E. Patterson, a professor of History at the University of New Brunswick. These witnesses had testified at trial in Marshall, supra. The Tax Court Judge found as a fact that there was no substantial difference among these witnesses as to the facts of history leading up to and surrounding the making of the treaties of 1760-61, although he found that they differed in their views with respect to the meaning to be ascribed to some of the language of these treaties and the understanding of the terms of the treaties that ought to be imputed to the parties.
[15] Dr. Patterson testified with respect to the taxation regimes which were in place at the time when the 1760-61 treaties were being negotiated. According to this testimony, the British government raised money for its own purposes by imposing an Imperial tariff on various foreign-produced goods such as sugar, molasses, rum and tobacco that was traded into England or a colony. Goods imported into Nova Scotia, such as rum and tobacco, were subjected to a small colonial duty which was charged to the importers and passed on to the consumer in the form of a hidden tax. Dr. Patterson also testified that this tax "applied across the board" and that he had seen absolutely nothing in the laws that exempted anyone...No exemptions." As rum was sold in truckhouses, Mi'kmaq trading goods for rum thereat paid this hidden tax. Although the Tax Court Judge did not discuss Dr. Patterson's evidence in his reasons for judgment, his conclusion would appear to coincide with the conclusion of that witness. In his written opinion, Dr. Patterson stated, inter alia, that the 1760-61 treaties did not "in any way, either individually or collectively, recognize a right in, or confer a right on, any Mi'kmaq not to be compelled to charge or collect tax for the Crown".
[16] Dr. Reid was of the opinion that the Mi'kmaq did not accept submission to the British Crown and that they were not subject to unilateral legislation which would require them to participate in a scheme of taxation. Moreover, he stated in his written evidence that, "Although there is no evidence that the matter was ever discussed explicitly, it would have been inconceivable to both sides that the Mi'kmaq would pay or collect British taxes". Dr. Wicken testified that the principal direct taxes in Nova Scotia at the time were the quitrent paid annually by land grant recipients and a poll or head tax on the male population. None of these taxes were paid by the Mi'kmaq. From his analysis of Nova Scotia taxation laws of the mid-18th century, he concluded that the 1760-61 treaties excepted the Mi'kmaq from the obligation to collect and remit tax to the British Crown because at the time the treaties were entered into the laws of Nova Scotia did not require the Mi'kmaq either to directly pay taxes or to collect taxes for the Crown. He was of the further view that as taxation was not specifically dealt with in the treaties, it may not be imposed upon the Mi'kmaq unless it is first negotiated and agreed to by them. Dr. Wicken summarized his view on the point at page 5 of his written evidence:
In sum, the Mi'kmaq and the British understood that under the treaties of 1760 and 1761 and their treaty relationship, the Mi'kmaq were free from any obligation to either pay or collect taxes paid by European residents of Nova Scotia. They also would have understood that any alteration in this treaty relationship would be negotiated and agreed upon. Indeed, any unilateral change by the British government in their treaty relationship and the imposition on the Mi'kmaq of any new burdens and obligations would have been inconceivable to the Mi'kmaq community.
The judgment below
[17] The Tax Court Judge found, in light of the judgment in Marshall, supra, that "the Mi'kmaq of Nova Scotia today are all entitled to the benefit" of the 1760-61 treaties. He proceeded to review some of the expert evidence, finding Dr. Reid's not to be helpful. The Tax Court Judge was also of the view that "neither the trade clause nor the promises of peace and friendship...can support the interpretation advanced by the Appellants", and that "[t]he...evidence falls far short of persuading me that the subject of taxation was in the mind of either party when these treaties were entered into". He was also of the view that no evidence had been led that would bring the Mi'kmaq within the protection of the trade clause in the 1760-61 treaties for the reason that the retail outlets run by the appellants "do not deal in the product of the traditional Mi'kmaq way of life" and that there could be no analogy between the trade conducted in those outlets and the type of trade that was contemplated by the parties to the treaties at the time when they were entered into. The Tax Court Judge rejected the appellants' submission that a requirement to collect and remit Goods and Services Tax would put the Mi'kmaq at a competitive disadvantage by increasing the cost of goods to their customers. In his view this argument ignored the fact that non-Indian competitors are obliged to collect and remit the tax.
[18] The Tax Court Judge drew from the historical record that the interest of the British authorities at the time when the treaties were entered into was to "end the repetitive skirmishing and occasional bloodshed that had characterized the relationship" and so allow for "orderly settlement". He found too that the Mi'kmaq interest at the time was of "forging a trading relationship in which they would receive a fair price for their furs" and other goods that they brought to trade. The Tax Court Judge rejected the argument that the promises of peace and friendship contained in the 1760-61 treaties gave rise to a requirement that the British engage in good faith consultation and substantive accommodation of the Mi'kmaq interests before exercising sovereignty, such as was done in Part IX of the Excise Tax Act with respect to the collection and remission of Goods and Services Tax on sales to non-Indian customers. He likewise rejected an argument that the treaty-making process was based on an understanding that when new issues arose the parties would engage as equals in good faith negotiations with a view to reconciling their respective interests. He concluded that there was no support in the evidence "that either the Governors or the Council from time to time had any thought of conferring on the Mi'kmaq the status of citizens who would not be bound by the ordinary laws of general application unless they had first been consulted, and had agreed to be bound".
Issues on appeal
[19] The appellants raise three issues on appeal. They submit that:
1. The Tax Court Judge misdirected himself and committed an error of law when he determined that the appellants were not entitled to a constitutional exemption in respect of the collection and remission of Goods and Services Tax on sales to non-Indians, as a result of the 1760-61 treaties and section 35(1) of the Constitution Act, 1982, R.S.C. 1985 (Appendices).
2. The Tax Court Judge erred by holding that the promise of peace and friendship contained in those treaties did not require the respondent to consult with and seek in good faith to obtain the consent of the Mi'kmaq to the imposition of new burdens and obligations, in particular to changes in the bases of trade between the Mi'kmaq and the British and where such consent was not forthcoming to substantially accommodate the Mi'kmaq interests before such burdens or obligations could be validly imposed.
3. The Tax Court Judge misdirected himself by failing to recognize a duty on the respondent to consult with the Mi'kmaq before taking steps which might have the effect of infringing their trade right under the 1760-61 treaties with the British authorities.
ANALYSIS
Treaty interpretation
[20] The appellants assert a right to trade with non-Indians that is protected by the 1760-61 treaties and that includes a right to do so to their mild advantage at the expense of the Crown, and on an effectively equal or competitive basis. They argue that the effect of the requirement in Part IX of the Excise Tax Act to collect and remit tax is to prevent them from exercising this treaty right in any meaningful way. That right, they contend, is not exhausted by the incidental right to fish as set out in Marshal, supra, or to trade only in those commodities that could be gathered by the appellants. The treaties contained no such restriction on the right to trade and none should be imported into them.
[21] This issue raises a question of treaty interpretation which is to be carried out in accordance with established principles. The principles so far developed were conveniently summarized by McLachlin J. (as she then was) in Marshall, supra, at paragraph 78, where she stated:
This Court has set out the principles governing treaty interpretation on many occasions. They include the following.
1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation: R. v. Sundown, [1999] 1 S.C.R. 393, at para. 24; R. Badger, [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 404. See also: J. [Sákéj] Youngblood Henderson, "Interpreting Sui Generis Treaties" (1997), 36 Alta. L. Rev. 46; L. I. Rotman, "Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test" (1997), 36 Alta. L. Rev. 149.
2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories: Simon, supra, at p. 402; Sioui, supra, at p. 1035; Badger, supra, at para. 52.
3. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69.
4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, supra, at para. 41.
5. In determining the signatories' respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901, at p. 907.
6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, at paras 53 et seq.; Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36.
7. A technical or contractual interpretation of treaty wording should be avoided: Badger, supra, Horseman, supra; Nowegijick, supra.
8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what "is possible on the language" or realistic: Badger, supra, at para. 76; Sioui, supra, at p. 1069; Horseman, supra, at p. 908
9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402.
[22] The appellants refer to the trade clause in the 1760-61 treaties as an unrestricted right to trade that is unencumbered by any taxation regime. Their position is that the absence of any reference in the treaties to the then existing taxation regimes must be interpreted as an intent that the Mi'kmaq would not be required to participate in those regimes and cannot now be made to do so. As we have seen, under those taxation regimes the Mi'kmaq were not obliged to pay tax except for the small hidden tax on imported goods sold at the truckhouses. Neither the treaties nor the historical record reveal any obligation on the Mi'kmaq to collect and remit any taxes exigible under those or other regimes. The appellants submit that requiring the Mi'kmaq to collect and remit the Goods and Services Tax on sales to non-Indians draws away from advantages they acquired under 1760-61 treaties of trading at the truckhouses, a system that was subsidized by the British authorities and that allowed the Mi'kmaq to trade their products on advantageous terms. They argue as well that the Tax Court Judge failed to take into account the evolutionary nature of the treaty rights or recognize that such rights are not to be frozen in time.
[23] As has been noted, "the goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed": Marshall, supra, at paragraph 78. In Marshall, evidence of common intention was found in contextual evidence that surrounded the making of the 1760-1761 treaties which included a promise that truckhouses be established by the British so as to enable the Mi'kmaq to trade the products of their traditional economy in exchange for "necessaries". That evidence led to the conclusion that the Mi'kmaq right to trade carried with it the implied right to fish and to hunt for the goods the Mi'kmaq would need to exchange for "necessaries". Moreover, as Binnie J. reiterated in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, at paragraph 138, "A treaty right is an affirmative promise by the Crown which will be interpreted generously and enforced in a way that upholds the honour of the Crown".
[24] As is clear from Marshall, supra, under the 1760-61 treaties a right exists to trade products of the Mi'kmaq's traditional economy. This was so observed by Binnie J. at paragraph 25, where he stated that,
...the British saw the Mi'kmaq trade issue in terms of peace, as the Crown expert Dr. Stephen Patterson testified, "people who trade together do not fight, that was the theory". Peace was bound up with the ability of the Mi'kmaq people to sustain themselves economically. Starvation breeds discontent. The British certainly did not want the Mi'kmaq to become an unnecessary drain on the public purse of the colony of Nova Scotia or of the Imperial purse in London, as the Trial Judge found. To avoid such a result, it became necessary to protect the traditional Mi'kmaq economy, including hunting, gathering and fishing.
(emphasis added)
and again emphasized at paragraph 56:
My view is that the surviving substance of the treaty is not the literal promise of a truckhouse, but a treaty right to continue to obtain necessaries through hunting and fishing by trading the products of these traditional activities subject to restrictions that can be justified under the Badger test.
The record suggests, and Dr. Wicken confirms, that historically the Mi'kmaq were first and foremost fishing and hunting peoples who depended principally upon game and fish for their sustenance and survival. In the present case, nothing in the record suggests the trade clause was intended to apply to Mi'kmaq goods other than those that would be traded for "necessaries" as commonly intended by the Mi'kmaq and the British when the 1760-61 treaties were signed. In short, neither the treaties nor contextual evidence supports the assertion that the treaties immunize the Mi'kmaq from a legislative obligation to collect and remit tax on sales of non-traditional goods to non-Indian customers. Since the nature of the appellants' trade does not fall within the treaty right to trade, it cannot operate as a basis to relieve the appellants of the obligations imposed by Part IX of the Excise Tax Act.
[25] The appellants argue that their trading rights under the treaties are not frozen in time and that the Court should uphold those rights so as to provide for their modern exercise. The suggestion here is that the right to trade under the 1760-61 treaties includes trade in the goods in respect of which they have been assessed. This of course begs the question of whether the 1760-61 treaties, properly interpreted, created a right to trade products that were not then part of the Mi'kmaq traditional economy. In the absence of evidence of a common intention that the treaty right to trade was not limited to products of the Mi'kmaq's traditional economy and that it embraced the sale of goods to non-Indians, it is difficult to regard the products so sold to non-Indians in the mainstream economy at their retail outlets on the Yarmouth, Whycocomagh and Cambridge Reserves as falling within the treaty protected trade. A principle of treaty interpretation requires that while construing treaty language generously, courts must not alter treaty terms by exceeding what "is possible on the language" or realistic. However, as Binnie J. cautioned in Marshall, supra at paragraph 14, "'Generous' rules of interpretation should not be confused with a vague sense of after-the-fact largesse".
Consultation and accommodation
[26] The appellants raise a second argument. They point out that the 1760-61 treaties were, as their opening words state, "Treaties of Peace and Friendship" between the British and the Mi'kmaq First Nations. They argue that a sui generis relationship was thus created as a result of which the respondent owed the appellants a fiduciary duty to engage in good faith negotiations with a view to reconciling conflicting interests before any new burdens or obligations could be validly imposed on the Mi'kmaq. "Friendship" required no less.
[27] The Tax Court Judge rejected this submission, finding that "nothing in the evidence" supported an intention on the part of the British signatories to exempt the Mi'kmaq from the application of general laws. It was his view, at paragraph 41, that "the Mi'kmaq understood very well that they were to have the protection of the British system of laws, and that along with it went the burden of being subject to those laws" and, at paragraph 43, that "the British in 1760 had no reason to offer the Mi'kmaq terms that would be more favourable to them than those that applied to the British settlers".
[28] In Mitchell, supra, McLachlin C.J. reaffirmed, at paragraphs 9 and 10, that long before European contact with the aboriginal peoples of North America, those peoples lived in "organized, distinctive societies" and that pre-existing aboriginal laws and interests were accepted by English law and continued in the absence of extinguishment by cession, conquest, or legislation. "[A]boriginal interests and customary law", she stated, "were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights unless (1) they were incompatible with the Crown's assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them". In the present case, as we have seen, by the 1760-61 treaty process between the British and the Mi'kmaq, the Mi'kmaq, by their submission, appear to have accepted the sovereignty of the British Crown save as the treaties otherwise provided, and to have agreed that differences and disputes arising between themselves and the British would be settled in accordance with British laws rather than by private satisfaction or revenge.
[29] It is true that the 1760-61 treaties created a relationship based upon a common understanding of the Mi'kmaq and the British authorities with a view to securing peace and promoting friendship among the signatories. Both sides had an interest in this relationship, the British authorities because peace would allow for orderly settlement and development by European settlers and the Mi'kmaq because the treaties would secure a measure of Crown protection and guarantee freedom of trade for the "necessaries" they required for their livelihood. However, nothing in the record suggests that, by this relationship, the parties understood that the Mi'kmaq would be forever exempt from the application of laws generally applicable to the trading of goods with non-Indians in the mainstream economy as opposed to the trading of goods in the Mi'kmaq's traditional economy with which the trade clause of the 1760-61 treaties was concerned.
[30] As already noted, while those treaties were of "peace and friendship" they were also of submission by the Mi'kmaq to the British Crown, acknowledgment of British jurisdiction over Nova Scotia and the application of British laws to the resolution of future disputes. Historical evidence suggests that the Mi'kmaq understood these terms as they were written. Thus, at the ceremonial "burying of hatchets" at the farm of Governor Jonathan Belcher on June 25, 1761, the Chief of the Cape Breton Mi'kmaq stated in words translated by Abbé Pierre Maillard the long-time French missionary among those people, that he submitted himself "to the laws of your government". Again, as Dr. Patterson pointed out at page 54 of his written opinion, during the 1760s "authorities in Nova Scotia issued passes to various native persons acknowledging their submission and guaranteeing their safe passage" within and without Nova Scotia. Also, on June 22, 1771 Lieutenant Governor William Campbell issued a commission to the Chief of the Cape Sable Mi'kmaq allowing them to wear royal colours on condition that he would order his people to "strictly...keep themselves always in Subjection & Obedience". Finally, at page 55 of his written opinion Dr. Patterson refers to a petition that was presented by Mi'kmaq Chief Adelah (Andrew Muis) to the Colonial Secretary (Lord Bathurst) in 1825, as to which Dr. Patterson commented as follows:
The problems, he [Chief Adelah] wrote, "do not reflect on the British Government, which they are bound by treaty to serve and support." Here he appended a copy of the March 10, 1760 treaty signed with Michael Augustine of the Richibuctou Micmac. Moreover, he said, the Micmac had been "unwilling to contend against the Laws which he had pledged himself by Treaty to obey".
Dr. Patterson acknowledged, however, (trial transcript, March 4, 1998, at p. 93) that while the submission to the British Crown under the 1760-61 treaties rendered the Mi'kmaq full subjects of the Crown, the Mi'kmaq did not thereby become subjects like all others but "special subjects...under the protection of the Crown". With respect to new issues arising after the treaties were signed, Dr. Patterson testified (trial transcript, March 4, 1998, at p. 127) that, beyond use of the framework of law and the King's courts to that end, there was "the normal expectation...that Native persons, as subjects of the Crown, would have opportunities to discuss grievances as all subjects of the Crown do".
[31] It is difficult to draw from the treaties or the contextual evidence a common understanding that, as the appellants assert, these accords required the British authorities to consult the Mi'kmaq prior to imposing on them any new legislative burdens such as are contained in Part IX of the Excise Tax Act. As was decided by the Supreme Court of Canada in a tax case, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, per Dickson J. (as he then was) at 36, "Indians are citizens and, in affairs of life not governed by treaties or the Indian Act, they are subject to all of the responsibilities, including payment of taxes, of other Canadian citizens". In the present case, as indicated above, the trade right contained in the 1760-61 treaties does not extend to the type of trade with non-Indians that the appellants conducted at their respective retail outlets in Nova Scotia.
Potential infringement of trade right
[32] The appellants advance a final argument. They point out that while the Tax Court Judge did not accept that a right under the 1760-61 treaties extended to trade with non-Indians conducted at the retail outlets on the Yarmouth, Whycocomagh and Cambridge Reserves, he did acknowledge, as indeed the decision in Marshall, supra, found, that these treaties conferred a right to trade. The appellants argue from this that the respondent was under a fiduciary duty to consult in good faith before taking action that might interfere with the treaty right. No such consultation occurred before Part IX of the Excise Tax Act was enacted nor before the decision was taken to assess the appellants pursuant to that statute.
[33] A duty to consult was recognized in some circumstances in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, before the Crown could permit a possible infringement of aboriginal title over a portion of 58,000 square kilometres in British Columbia. In discussing justification for infringement of aboriginal title rights, Lamer C.J. stated, at paragraph 168:
There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown's failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare case when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.
This reasoning was adopted in R. Marshall, [1999] 3 S.C.R. 533 (a motion for rehearing of Marshall, supra), where the Supreme Court stated, at paragraph 43, that the special trust relationship between the Crown and the Indians "includes the right of the treaty beneficiaries to be consulted about restrictions on their rights". The argument now advanced is not that the Mi'kmaq were "treaty beneficiaries" of the right to trade at the retail outlets in issue but that as they might possess a treaty right to do so they ought to have been consulted before Part IX of the Excise Tax Act was enacted or the assessments were raised.
[34] The appellants rely on two decisions of the courts in British Columbia in support of this submission: Westbank First Nation v. British Columbia (Minister of Forests) (2000), 191 D.L.R. (4th) 180 (BCSC); Haida Nation v. British Columbia (Minister of Forests), 2002 BCCA 147. One of the issues in Westbank First Nation was whether the District Manager of the provincial Ministry of Forests was bound to consult with the Indians prior to harvesting trees in an area that was subject to the application of aboriginal title. In rejecting the argument, Sigurdson J. took guidance from a decision of the Ontario Court of Appeal in Transcanada Pipelines Ltd. v. Beardmore (Township) (2000), 186 D.L.R. (4th) 403, where it was held, at paragraph 119, that "the duty of the Crown to consult with First Nations is a legal requirement that assists the court in determining whether the Crown is constitutionally justified in engaging in a particular action that has been found to prima facie infringe an existing Aboriginal or treaty right of a First Nation". In Haida Nation, supra, the Haida claimed that the Crown was under a legal obligation to consult them before authorizing logging operations on the Queen Charlotte Islands over which they claimed aboriginal title. The British Columbia Court of Appeal agreed with that submission. As appears at paragraph 50 of Haida Nation, the Court of Appeal was influenced by the finding at trial that the Haida people had "a good prima facie case to a claim for aboriginal title and aboriginal rights". Equally important was a finding that old growth cedar was in short supply. Notwithstanding the fact that the claim had yet to be established in a court of law, it is implicit in the latter finding that allowing logging to continue until there was a judicial determination of aboriginal title would result in a further reduction of a commodity which was already in short supply, an element which is not present here. In the circumstances of this case, the appellants have neither an established treaty right to trade the goods in respect of which they have been assessed nor a strong prima facie case regarding either a trade right that would encompass those goods or a fiduciary duty on the Crown to consult with the Mi'kmaq before adopting the collect and remit feature of Part IX of the Excise Tax Act or before assessing them for failure to so collect and remit the tax.
[35] Both prior to the time when the legislation was enacted and when the assessments were raised, it had not been determined that the appellants had a treaty right to trade the goods sold to non-Indians at their respective retail outlets. Nor, apparently, had the Mi'kmaq made the respondent aware of an assertion that they possessed a good prima facie right to so trade unencumbered by the obligation under Part IX of the Excise Tax Act to collect and remit Goods and Services Tax on sales to non-Indian customers. It follows, therefore, that the argument of a duty on the Crown to consult the Mi'kmaq before the Excise Tax Act imposed the obligation to which they now object, or to consult the appellants before the assessments were raised, cannot be accepted.
[36] For the foregoing reasons, the appeals should be dismissed with one set of costs.
"A.J. STONE"
J.A.
"I agree
Marshall Rothstein J.A."
"I agree
J.D. Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-423-00
STYLE OF CAUSE: VAUGHN PICTOU v. HER MAJESTY THE QUEEN
DOCKET: A-424-00
STYLE OF CAUSE: RODERICK A. GOOGOO v. HER MAJESTY THE QUEEN
DOCKET: A-425-00
STYLE OF CAUSE: EDWARD GOOGOO v. HER MAJESTY THE QUEEN
DOCKET: A-426-00
STYLE OF CAUSE: JO-ANN TONEY-THORPE v. HER MAJESTY THE QUEEN
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: NOVEMBER 6 AND 7, 2002
REASONS FOR JUDGMENT : STONE J.A.
CONCURRED IN BY: ROTHSTEIN AND PELLETIER JJ.A.
DATED: JANUARY 14, 2003
APPEARANCES:
D. BRUCE CLARKE FOR THE APPELLANTS
PETER J. LESLIE FOR THE RESPONDENT
SOLICITORS OF RECORD:
BURCHELL GREEN HAYMAN PARISH FOR THE APPELLANTS
HALIFAX, NOVA SCOTIA
MORRIS ROSENBERG, DEPUTY FOR THE RESPONDENT
ATTORNEY GENERAL OF CANAD