Treaty Rights ‘Treaty rights’ are the rights that Aboriginal peoples have as a result of agreements they entered into with the French, British and Canadian governments, both prior to and after Confederation. These agreements include both the historic treaties, the last of which were entered into in the 1920s, and modern land claims treaties, dating from the mid-1970s. In Canadian law, these treaties are unique: they are not international agreements, nor are they mere contracts. Since 17 April 1982, the rights of the Aboriginal peoples contained in these treaties have been constitutionally protected in the same way as existing Aboriginal rights. Specific treaty rights depend on the actual terms of each treaty, including any oral terms that were agreed upon but were not included in the written document. Examples of treaty rights of the Aboriginal peoples are rights to hunt and fish, and to receive reserve lands, agricultural implements, annuity payments, education, and other benefits. In exchange, the European and Canadian governments who signed the treaties generally obtained peace and friendship with the Aboriginal parties, and in some cases the right to open up some lands for European settlement. The Supreme Court of Canada has established the following principles for interpreting the historic treaties (see R. v. Simon, [1985] 2 S.C.R. 387; R. v. Badger, [1996] 1 S.C.R. 771; and R. v. Marshall, [1999] 3 S.C.R. 456). The treaties have to be interpreted in a liberal and generous manner, taking into account the historical and cultural context. They also have to be interpreted as the Aboriginal parties would have understood them, and any ambiguities are to be resolved in their favour. Finally, the honour of the Crown is at stake, so any appearance of sharp dealing has to be avoided in interpreting the treaties. Trade and Commerce One of the heads of power allocated to the federal government in the Constitution Act, 1867, s. 91(2). Comparable to the federal power in the United States Constitution to “regulate commerce with Foreign nations, and among the several States,” the power to regulate trade and commerce was considered one of the broadest powers available to the federal government to regulate economic activity. It was out of concern that the federal power over trade and commerce would render meaningless provincial authority over property and civil rights, that Courts narrowed the scope of this federal power. In an early decision of theJudicial Committee of the Privy Council (1881), the federal power was limited to the regulation of foreign trade, interprovincial trade and, perhaps, the “general regulation of trade affecting the whole dominion.” But federal power did not extend to the regulation of the contracts of a particular business or trade as such regulation fell exclusively under provincial control. In subsequent decisions, courts would not recognize the federal power to regulate trade generally. The modern Supreme Court of Canada has sanctioned use of this branch of the federal power. The Court upheld a federal law which provides a civil cause of action for breach of the federal Combines Investigation Act. It has been argued by at least one scholar in Quebec that such an interpretation of the federal power by the Supreme Court amounts to a radical reinterpretation and expansion of federal power. See Smith (1963); Swinton (1990). Sources: McGilp. Ian (1992) The Distinct Society Clause and the Charter of Rights and Freedoms (North York: York University Centre for Public Law and Policy). Smith, Alexander (1963) The Commerce Power in Canada and the United States (Toronto: Butterworths). Smith, Lynn (1989) “Could the Meech Lake Accord Affect the Protection of Equality Rights for Women and Minorities in Canada?” Constitutional Forum 1(2): 12, 17-20. Swinton, Katherine (1990) The Supreme Court and Canadian Federalism: The Laskin-Dickson Years(Toronto: Carswell). Trudeau, Pierre Elliot (1988), “Say Goodbye to the Dream of One Canada” in Roger Gibbins, Howard Palmer, Brian Rusted and David Taras, eds., Meech Lake and Canada: Perspectives From the West (Edmonton: Academic Printing and Publishing). Double Aspect The Double Aspect doctrine is a tool of constitutional interpretation used when both levels of government have an equally valid constitutional right to legislate on a specific issue or matter. Double Aspect represents the modern notion of co-operative federalism, which abandons the out-dated idea that every subject matter falls under the exclusive control of either the federal or provincial government. Double Aspect fosters respect for the decisions of the elected legislatures of both levels of government. As the name indicates, the double aspect doctrine acknowledges that both Parliament and the provincial legislatures can pass valid legislation relating to the same subject depending on the aspect from which the subject is being approached. The best example of this doctrine at work is inMultiple Access v McCutcheon, a 1982 case that dealt with insider trading in Ontario. Both levels of government passed legislation to combat insider trading: the Federal government passed legislation dealing with federally regulated corporations, while Ontario’s legislation focussed on the actual acts of insider trading. The Provinces could claim the power to do this through their constitutional powers over property and civil rights, which includes securities trading such as what was occurring in this case. The Federal government had an equally strong jurisdictional claim through its ability to regulate for the peace, order and good government of Canada. The Supreme Court ruled that both pieces of legislation were valid because they dealt with different aspects of the same problem that fell within the constitutional powers of the enacting legislature. Prominent Double Aspect Cases: Multiple Access v McCutcheon Taxation Power Canada’s constitution divides the power to tax between Parliament and the provincial legislatures. Parliament has power to tax “by any Mode or System of Taxation.” This power includes ‘indirect taxation’. The legislatures, by contrast, are limited to “Direct Taxation within the Province”(Constitution Act, 1867, s. 91(3), 92(2)). Indirect taxes are imposed in one area of the economy with the expectation that the taxpayer will pass it on to another sector. For example, taxes imposed on manufacturing are the classic instance of indirect taxes. The legislature expects that the manufacturer will pass the tax on to the consumer by building it into the cost of the good sold. Direct taxation is expected to be paid by the taxpayer on whom it is first imposed; it is not expected to be passed on. Accordingly, direct taxation is thought to be more visible to the ultimate taxpayer and, politically, harder to get enacted. This was the nineteenth century economic theory behind the division of taxing powers (J.S. Mill, Principles of Political Economy, Bk. V, 3). The Constitution requires that Bills imposing taxes must originate in the House of Commons and be preceded by a royal recommendation. This is a means of insuring that the elected chamber and a Cabinet Minister will take primary responsibility for taxation. The Constitution also prohibits Parliament and the legislatures from using their powers to tax lands or property belonging to each other (Constitution Act, 1867, secs. 53(4), 125). Parliament and the legislatures may also raise money by charging fees for their services, and by imposing costs incidental to regulation, such as licencing fees. These charges are not taxation. So they are not restrained by the constitutional requirements to originate in the House of Commons, be preceded by a royal recommendation, and, in the case of the provincial legislatures, be “direct”. To be considered non-tax service charges or regulatory measures, levies must pursue a proper regulatory purpose that is anchored in some grant of constitutional power to the enacting legislative body, other than the taxing powers. The difference between taxes and these other charges is that taxes may be pure revenue raising measures. Regulatory charges, by contrast, usually are imposed to defray the expenses of the regulatory scheme, as, for example, a marketing board imposing the costs of its operation on the regulated producers or a municipality charging for snow removal. Unlike taxes, regulatory charges that are not taxes may originate in the Senate, do not require a royal recommendation, and, if imposed by a provincial legislature, may be indirect. Tax Points ‘Tax points’ came to prominence with the Federal-Provincial Fiscal Arrangements Act of 1961 (see the currentFederal- Provincial Fiscal Arrangements Act, R.S.C. 1985, c. F-8.) when the federal and provincial governments converted from the tax rental arrangements (which originated during World War II) to separate federal and provincial personal and corporate income taxes (PIT and CIT). The federal government reduced its personal and corporate incomes taxes to make room for the newly established provincial taxes. The federal PIT abatement started at sixteen percent of the Basic Federal Tax (BFT) payable. PIT tax points are measured as a percentage of BFT and as of 2001, provincial personal income tax rates have been expressed as a percentage of the BFT. The federal CIT abatement was initially 9 percent of corporate taxable income (not tax payable, as with the PIT). With the federal abatement, the provinces introduced their own taxes at offsetting or higher rates. ‘Tax points’ took on a renewed relevance with the Federal- Provincial Fiscal Arrangements of 1977, when the federal transfer programs in support of health-care and post-secondary education were converted from cost sharing to a block transfer under the new Established Program Financing (EPF) transfer. EPF funding to the provinces was a combination of cash transfers and tax point transfers that would provide each province the same per capita support for health care and post secondary education. The value of the tax abatement, which made room for increased provincial taxes, varied by province and the cash payment made up the difference to the uniform per capita amount.