Examining the Provisions of Section 87 of the Indian Act as a Means to Promote Economic Participation and Treaty Implementation by Myra J Tait A Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba in partial fulfilment of the requirements of the degree of MASTER OF LAWS Faculty of Law University of Manitoba Winnipeg Copyright © 2017 by Myra J Tait ii ABSTRACT Canadian courts, despite recognition in the Canadian Constitution, 1982 that treaties are to govern the Crown-Aboriginal relationship, continue to develop principles of interpretation that narrow Aboriginal and treaty rights, including the taxation provisions of the Indian Act. In Robertson, the Federal Court of Appeal, building on Mitchell v Peguis, articulated a “historic and purposive” analysis, by reliance on a distinctive culture test and an ascribed protection rationale, thereby abrogating the fundamental treaty relationship. As a means to fuller implementation of the spirit and intent of Treaties, taxation provisions must be interpreted in a treaty-compliant manner. The potential for economic participation through a proposed “urban reserve” on the Kapyong Barracks in Winnipeg, Manitoba, as part of a Treaty 1 settlement, is discussed as a case study, and compared with similar developments in New Zealand, under a Waitangi Tribunal settlement, as an example of treaty compliance in economic development. Key words: Indian Act s87; Economic development; Historic and purposive; Tax exemption; Numbered Treaties; Treaty interpretation; Treaty implementation; Urban reserves; Native Leasing Services, Kapyong; Waitangi Tribunal. iii Acknowledgements Ehara taku toa, he takitahi, he toa takitini—Success is not the work of one, but of many. First and foremost, thank you to Dr Lorna Turnbull my supervisor and my friend. Thank you for the privilege of being your student, and for believing in me from the very start. It has been a long road, but we walked it together. I am reminded of Frodo’s words: “I’m going to Mordor alone”, to which Sam replies, “Of course you are, and I’m coming with you.” My sincere thanks to Drs David Milward and D’Arcy Vermette, my Advisory Committee, whose thoughtful comments and willingness to work with tight timelines assisted in my success. I also wish to acknowledge the financial support of the University of Manitoba GETS program, and SSHRC funding related to Dr Kiera Ladner’s constitutional law and politics research, which informed my own research immensely. Thank you Kiera for your personal encouragement, as well. Thank you as well to the Berens River First Nation Education Committee (especially Stanley) and the Student Services staff, for both PSSSP financial support and your encouragement. Thank you to Dr Maureen Matthews and The Manitoba Museum Indigenous Scholar-in-residence program; your excitement and commitment to Treaty 5 research is infectious. Last, but not least, I thank my wise and kind children. Thank you Emily for your encouragement to reach far. Thank you Ila for your friendship and your humour. Thank you Creston for your commitment to excellence. Thank you Garrison for your many hugs and unconditional love. iv Dedication I walk a path traversed by a long line of wise leaders, strong women, and insightful negotiators, including my great-great grandfather, Chief Jacob Berens, who signed Treaty 5 at Berens River in 1875. Thus, I dedicate this work to my ancestors who envisioned a peaceful nation, to my relations who continue to toil to realize that vision, and to the 7th Generation – our children who follow. v TABLE OF CONTENTS ABSTRACT . ii ACKNOWLEDGMENTS . iii DEDICATION . iv TABLE OF TREATIES . vii CHAPTER 1 – INTRODUCTION . 1 TAXATION, THE THIN EDGE OF THE WEDGE . 10 OUTLINE OF CHAPTERS . 12 CHAPTER 2 – INDIAN ACT PROVISIONS AND EARLY JURISPRUDENCE . 15 CURRENT INDIAN ACT TAX PROVISIONS . 15 INDIANS ARE NOT ‘PEOPLE’, AND OTHER INTERPRETIVE CHALLENGES . 19 NOWEGIJICK – THE ARRIVAL OF THE MODERN INDIAN . 23 MITCHELL V PEGUIS – ONE STEP FORWARD, TWO STEPS BACK . 26 JUSTICE LA FOREST ON THE TREES AND THE FOREST . 32 CHAPTER 3 – THE WILLIAMS “CONNECTING FACTORS” . 39 “CONNECTING FACTORS” TEST FALLOUT . 43 CERTAINTY IN ORDERING AFFAIRS – NATIVE LEASING SERVICE . 47 INDIAN QUA INDIAN – ACTING IN THE CAPACITY OF AN INDIAN . 56 R V MARSHALL ON INDIAN “NECESSARIES” AND “MODERATE LIVELIHOOD” 66 TAXATION AND SOVEREIGNTY . 70 CHAPTER 4 – TAXATION AS A TREATY RIGHT . 73 JUSTICE NADON VERSUS JUSTICE CAMPBELL (ON ORAL HISTORY) . 74 THE “COMMERCIAL MAINSTREAM” (BRIGADOON) TEST . 80 TREATY TO RESERVE TO TAX EXEMPTION…SHORT STEPS . 87 FROM OMISSION TO ADMISSION – ROBERTSON . 91 TUCCARO – RETURN TO TREATY RIGHTS . 97 vi CHAPTER 5 – THE PROBLEMATIC RECORD OF CANADA’S INDIAN POLICY. 101 HARD (INDIAN ACT) HISTORY LESSONS . 105 TREATY RELATIONSHIP OR CHRONIC CONTEST? . 110 FROM DOMINION TO DIALOGUE . 117 CHAPTER 6 –IMPLEMENTING THE SPRIT AND INTENT OF OUR TREATIES: CASE STUDY ON KAPYONG & TE AWA—THE BASE . 122 KAPYONG . 123 MEETING TREATY OBLIGATIONS IS HARD . 125 CHANGING THE RULES . 129 JUSTICE NADON & JUSTICE CAMPBELL–ON REASONABLE REASONS . 132 FROM PAVEMENT TO PROSPERITY – KAPYONG AS AN URBAN RESERVE . 137 GROUNDING TAXATION IN THE TREATY RELATIONSHIP . 141 PUBLIC OPINION AND THE QUESTION OF FAIRNESS . 143 NEW ZEALAND – TREATY IMPLEMENTATION . 146 TREATY OF WAITANGI AND THE WAIKATO-TAINUI SETTLEMENT . 150 WAIKATO-TAINUI: FROM INJUSTICE TO ECONOMIC DEVELOPMENT . 153 TREATIES, ECONOMIC DEVELOPMENT, AND TAXATION . 156 MOVING FORWARD BY RETURNING TO TREATIES . 161 CHAPTER 7 – CONCLUSIONS AND RECOMMENDATIONS . 163 BIBLIOGRAPHY . 171 vii TABLE OF TREATIES Mi’kmaq Treaties of 1760-61 1760-61 Peace and Friendship Treaties Between His Majesty the King and the LaHave Tribe of Indians Treaty of March 10, 1760 with Chief Michael Augustine of the Richebuctou Tribe Archival Reference: PRO CO 217/45, ff. 145-146v (or p. 287-290) Authenticity Level: Copy made in 1825 from the 1760 original held by the Richebuctou chiefs; taken by the Aboriginal signatories for presentation in London, England. Treaty of June 25, 1761 with Chief Joseph Shabecholouest of the Miramichi Tribe Archival Reference: PANS RG 1, vol. 165, p. 162-165. Authenticity Level: Registry copy of treaty terms only, entered by Provincial Secretary and Registrar Richard Bulkeley in his "Commission Book." The Numbered Treaties of Western Canada Treaty 1 Between Her Majesty The Queen and the Chippewa and Cree Indians of Manitoba and Country Adjacent with Adhesions, 3 August 1871. Treaty 5 Between Her Majesty the Queen and the Saulteaux and Swampy Cree Tribes of Indians at Beren's River and Norway House with Adhesions, 20 September 1875. Treaty 11 Between His Most Gracious Majesty George V, King of Great Britain and Ireland and of the British Dominions beyond the Seas, by His Commissioner, Henry Anthony Conroy, Esquire, of the City of Ottawa, of the One Part, and the Slave, Dogrib, Loucheux, Hare and other Indians, inhabitants of the territory within the limits hereinafter defined and described, by their Chiefs and Headmen, hereunto subscribed, of the other part:-- (June 27, 1921) and Adhesion (July 17, 1922) with Reports, etc. Treaty Texts available at Government of Canada, Indigenous and Northern Affairs Canada, online: <https://www.aadnc-aandc.gc.ca/eng/1370373165583/1370373202340>. New Zealand Treaty of Waitangi Act 1975, Schedule 1 – The Treaty of Waitangi. Treaty of Waitangi texts and literal rendition of Māori version available online: <http://www.treatyofwaitangi.net.nz/ReadtheTreaty.html>. 1 Chapter 1 – Introduction “Inevitably, there are distortions, omissions, erasures, and silences in the archive. Not every story is told”.1 There remains a persistent myth, despite living in the ‘information age’, that Indians2 do not pay taxes. While there is a grain of truth to this belief, it is far from the whole truth. Where Aboriginal peoples fit in Canada’s story, both legally and socially, remains highly contested. Many of the stories that collectively narrate how Canada became the nation it is today have simply passed from memory as insignificant remnants of a time gone by, never to find a way into the annals of Canada’s collective memory. Other stories, however, reflecting the impact of a discourse dominated by colonialism, are distorted or deliberately silenced, resulting in a record that is difficult to integrate into modern law and policy. Situating this examination of Indians and taxation into a fuller historical and legal context, the tax exemptions available to Indians today are more properly understood as a reflection of a treaty relationship and not normative Canadian tax law. Accounts of the Crown’s dealings with Aboriginal peoples have been told and retold, to reinforce the grand project of colonization. The historic rationale, official or otherwise, for Canada’s ‘Indian policy’ found its expression in Indian Residential Schools, the Pass system, and other law and policy regimes aimed solely at First Nations peoples. Even today, the Indian Act3 1 Rodney GS Carter, “Of Things Said and Unsaid: Power, Archival Silences, and Power in Silence”, 61 Archivaria 215 at 216. 2 The term, “Indian”, is used in its legal sense, as defined by the Indian Act, s 2(1) and s 6, and differentiates those to whom the Indian Act applies, namely “Indians”, from other Aboriginal peoples, including Inuit, Métis, and other non-registered persons of Aboriginal descent. The Court has made clear distinction as to the applicability of the Indian Act in Reference whether “Indians” includes “Eskimo” [1939] SCR 104, and Daniels infra note 4. Where appropriate, the preferred terms of “First Nations”, “Aboriginal” and “Indigenous” peoples are also used. 3 Indian Act RSC, 1985, c I-5. 2 governs most aspects of the lives of Indians. Over time, the net effect has been an inaccurate and often denigrating record of Aboriginal peoples, creating a deep well from which lawmakers continue to draw. This perspective has contributed more than any other single factor to the continued uncertainty and confusion regarding the inherent legislative intent and practical application of section 87 of the Indian Act.