[2003] 3 F.C. D-35
NATIVE PEOPLES
Taxation
Benoit v. Canada
A-47-02
2003 FCA 236, Nadon J.A.
11/6/03
70 pp.
Appeal from judgment of Campbell J. ([2002] 2 C.N.L.R. 1) holding Treaty 8 between Crown, Cree and Dene peoples in 1899 included promise Aboriginal signatories would never be taxed for any reason—Held treaty right not extinguished prior to April 17, 1982, now protected by Constitution Act, 1982—Federal taxation of Treaty 8 beneficiaries inconsistent with Constitution Act, 1982, s. 35, and to extent of inconsistency of no force, effect—Treaty 8 was one of 11 entered into during period 1871-1923 to facilitate settlement of West—Treaty 8 involved surrender of vast areas of land in exchange for undertakings in regard to reserves, schools, annuities, farming equipment, ammunition, relief in times of famine, pestilence—Hunting, trapping, fishing rights guaranteed—No promise in Treaty 8 exempting Indians from taxation—Even so, and notwithstanding finding Treaty Commissioners had no intention of making such promise, Campbell J. held Treaty to be construed as containing such promise—That conclusion was subject-matter of this appeal— Dispute stems from Report of Treaty Commissioners to Clifford Sifton, Superintendent General of Indian Affairs—Lengthy document included: "We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and there was no fear of enforced military service"—Clear from evidence that Treaty Commissioners intended to act within authority, not to create rights not in other treaties (which did not provide for tax exemption)—F.C.T.D. Judge noted Superintendent General instructed Commissioners not to go beyond terms of previously negotiated treaties—Respondents based claim to right to non-taxation on above- mentioned words in Commissioners' Report—Appellants argued Indians were never promised non-taxation, Aboriginal signatories never understood such promise made—Campbell J. found words in Report constituted treaty promise although common intention not proven—However, also found Indians understood words spoken by Commissioners as promise would not be taxed if entered into Treaty—Relying on concept of honour of Crown, Crown held responsible for misunderstanding—While appeal gave rise to some five issues, appeal could be disposed of by answer to just one: did F.C.T.D. Judge err in finding Aboriginal signatories misunderstood what they were told by Treaty Commissioners?—Appellants' argument: Campbell J. erred in law by ignoring all evidence contrary to finding oral historical evidence established Aboriginal signatories believed tax immunity promised—Lamer C.J. in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, wrote that appellate court may substitute own findings of fact where lower court judge made "palpable and overriding error"—Evidence at trial herein could not reasonably support conclusion arrived at by Campbell J.—In desire to be sensitive to oral history adduced by respondents, Judge crossed boundary warned against by McLachlin C.J. in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, at para. 39: "There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence. As Binnie J. observed in the context of treaty rights, ‘[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse’ (R. v. Marshall, [1999] 3 S.C.R. 456)"—"While the evidence presented by aboriginal claimants should not be undervalued … neither should it be artificially strained to carry more weight than it can reasonably support"—Burden of proving Aboriginal signatories misunderstood lay on respondents—Applicable standard of proof that in civil case—In Smith v. Smith, [1952] 2 S.C.R. 312, Cartwright J. adopted what was said by Dixon J. in Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 (Aust. H.C.): "reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made … or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal"—Seriousness of respondents' allegation, that they are not obliged to ever pay taxes for any reason, and gravity of consequences of Court so finding such that F.C.T.D. Judge, had to carefully assess all evidence; failure to do so serious error warranting Court of Appeal's intervention—Campbell J. relied on "sparse, doubtful and equivocal" (words used by McLachlin C.J. in Mitchell) evidence—Appellants referred to much evidence ignored by F.C.T.D. Judge—In particular, he excluded all transcripts of Treaty and Aboriginal Rights Research (TARR) interviews with Aboriginal elders conducted in 1970s except for one of two with Cree elder Mustus—Either all or none of transcripts admissible—Judge reasoned that Mustus interview only one in which taxation discussed—That remainder failed to deal with that topic not rendering them irrelevant—That 100 elders made no mention of taxation clear indication may not have understood tax promise had been made—Judge's reasons for judgment indicated wished not to deal with fact that most of TARR transcripts silent as to tax exemption—Invoking conjecture, Campbell J. refused to consider implications of singularity of Mustus interview—In concluding tax promise had been made, Judge below relied on 1991 unsworn affidavit of Cree elder Willier—29 other elders interviewed by Saskatchewan lawyer who drafted Willier affidavit made no reference to unfulfilled tax promise, but this fact ignored by Judge—In 1930s Bishop Breynat, who witnessed signing of Treaty, campaigned in protest against government's failure to honour promises made—Affidavits by Bishop and Cornwall, Edmonton resident present when the Treaty was adhered to, not mentioning tax promise—These were not considered by Trial Judge—Court of Appeal could not accept respondents' submission, that since taxation was not big issue in 1930s, silence regarding tax promise of no significance—Aboriginal signatories had much to say about taxation in submissions to Joint Committee of Senate and House of Commons in 1946—Expert witnesses referring to book As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939, Toronto: McClelland and Stewart, 1973, by Father René Fumoleau—This work, which reports on research into Indians' understanding of promises made, makes no reference to tax promise—Historian, Dr. Irwin, who conducted comprehensive research on subject, testified under cross-examination that Commissioners' Report is sole document making reference to taxation in regard to Treaty 8—When that Report was received at Ottawa, Commissioners not taken to task for having exceeded their instruc-tions—Evidence of Dr. Patricia McCormack, anthropologist called to testify for respondents, supported appellants' position—In preparing her doctoral thesis, she interviewed many elders, but her thesis makes no mention of a tax exemption promise—In 1946, Joint Committee of Senate and House of Commons created to review Indian Act—Aboriginal submissions on various issues, including taxation, were entertained but none referred to unfulfilled tax exemption promise—Indians spoke of their tax exemption if working on their reserve and acknowledged that excise and sales taxes, such as those upon tobacco and matches, are regularly paid by treaty Indians—Extensive submissions to Joint Committee by Treaty 8 Indians, though highly relevant, not considered by F.C.T.D.—Judge relied upon transcript of interview with Cree elder Mustus, making no attempt to ascertain its meaning, although it was rambling, repetitive and far from definitive—Mustus evidence not indicating that blanket tax exemption had been given—He said that Indians should not pay taxes on land and ought not pay for schools and hospitals but for "food stuff, and for all that you buy, where there is an additional charge—or tax—that you pay, that is the same for the Indian"—Dene elder Randhile, when asked whether tax discussed at treaty, answered: "I don't recall anyone ever mentioning that … if these types of things were told to us in terms of taxation and so forth, it would have been documented"—Only in response to leading question did she say "What I was told in this case here was that—that we would not have to pay anything"—Only conclusion that her evidence unreliable—Judge also relied on evidence of Paulette, former Chief currently holding no community mandate—His testimony was vague, equivocal and inconclusive as to tax promise—His testimony concerned imposition of royalties on furs and taxing back of Treaty benefits—Did not extend to full taxation exemption—His evidence did not even meet "community standard" test established by F.C.T.D. Judge himself, since Paulette, being in his early 50s, insufficiently senior to be an elder—Final witness relied upon by Judge was 92-year-old Cree elder Joe Willier—His 1991 statement not deserving of any weight, his affidavit was neither sworn nor put to him when he testified—No necessity for his statement being admitted as evidence in that he was available to testify—Same goes for his 1999 statement—Willier's testimony, that not told had to pay tax, could not be transformed into answer that his people had received treaty tax exemption promise—Land was central theme of Willier's evidence and his connection between tax and land could be reconciled with Treaty which gave Indians option of communal reserves or individual severalty allotments, both tax exempt—As to credibility, during 1999 interview, Willier produced list, handwritten by his son, of 19 Treaty promises, none concerning taxation but, later in interview, produced second list, typewritten by grandson, adding additional promise: tax exemption—With respect to testimonies of Paulette, Willier and Randhile, hard to draw line between oral history and opinion of witness—In Mitchell, Chief Justice made it clear that principles in Delgamuukw v. British Columbia, not calling for blanket admissibility of oral history evidence or mandating weight it should be given— "Community standard" test adopted by Campbell J. not meeting test in Mitchell: objective standard for determining whether hearsay evidence useful, reliable—Not open to F.C.T.D. Judge to defer consideration to "community"—Approach taken by F.C.T.D. Judge puzzling: seems to have treated oral history evidence of Paulette, Willier, Mustus and Randhile as if resulting from personal knowledge—That Campbell J. confused revealed by his reference to Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.), judicial review of Immigration Appeal Board decision—As Act stood at that time, Board not bound by rules of evidence and could accept hearsay evidence not subject to S.C.C. test of usefulness and reliability—Appears that Judge unmindful of hearsay nature of evidence of witnesses not present when Treaty signed— Judge wrong in view that leading questions legitimate when elders were in witness box—Furthermore, oral history evidence herein differed from that in Delgammuukw, which was sacred litany of most important laws, history, traditions and traditional territory of House—Only certain people at important community events authorized to repeat these stories, whose authenticity ensured in that anyone at event could object to recital—Oral history herein less formal in nature—Checks and balances not in place—Trial Judge's failure to understand nature of evidence amounted to reversible error—He failed to critically assess testimony of those witnesses upon which he relied—Gave preferential treatment to oral history evidence, contrary to what was taught in Mitchell—Failed to take into account expert opinion evidence of researchers such as Drs. Irwin and McCormack—As to weight to be accorded oral history evidence, as pointed out by anthropologist Alexander von Gernet, "The question is … not so much whether an oral document is accurate about an actual past, but whether it is in accord with independent evidence … Once the oral traditions are tendered as evidence in support of a reconstruction of what actually happened in the past, not subjecting them to rigorous analysis will only lead to an unacceptable double standard"—That approach consistent with what was taught in Mitchell—Oral history cannot be accepted without undergoing the critical scrutiny that courts and experts (historians, archeologists, social scientists) apply to various types of evidence with which they have to deal—Issue herein not involving right which originated in times when there were no written records—Voluminous documentary record on Treaty 8 exists—That record fails to support respondents' position which was accepted by F.C.T.D. Judge—Had he not disregarded much of evidence and misapprehended other material evidence, he could only have concluded that respondents' claim not supported by evidence—F.C.T.D. judgment set aside with costs at trial and on appeal, save for cost of Appeal Books, which Canada had agreed to bear.