A stunning Federal Court ruling has found that the oral history of some 1500 Dene and Cree peoples of northern BC, Alberta, Saskachewan and the Northwest Territories translates into a constitutionally protected treaty right to absolute tax immunity – on reserve or anywhere else.
On March 7, 2002 Federal Court justice Douglas Campbell ruled that : “Any income earned by a member of Treaty 8, regardless of where it is earned is exempt from tax.”
“We were very pleased when we heard that the Federal Court has recognized and affirmed what our elders have been very clear on – that it’s our treaty right not to be taxed,” said Grand Chief Clyde Goodswimmer, of the Treaty 8 First Nations of Alberta.
The 175 page decision was rendered following a 35-day trial in Edmonton that involved voluminous documentation and hundreds of expert witnesses. Indeed, Campbell’s ruling provides a detailed account of the negotiation and implementation of 1899 treaty.
In considering the oral evidence of the treaty negotiations, Campbell found that the Crown was understood to have made promises of no taxation to the aboriginal people of the time and it therefore “constitutes an enforceable treaty right.”
“I have found that the Cree and Dene people believed the commisioners promised a tax exemption.” wrote Campbell. In opening northern Alberta for settlement, the government of Canada made promises to the Cree and Dene people of the region. During the negotiation of Treaty 8, the federal Crown assured the signatories that the treaty did not ” open the way to the imposition of any tax” wrote Campbell J.
The ruling is a major victory for Gordon Benoit of the Mikisew Cree Nation, supported by all Treaty 8 First Nations, after a ten year legal battle The legal proceedings, begun by the Benoit family in 1992, grew to include the Athabasca Tribal Council, the Kee Tas Kec Now Tribal Council and the Lesser Slave Indian Regional Council of northern Alberta as plaintiffs against the federal government. The province of Alberta participated as intervenors, as did the Canadian Taxpayers Federation in a limited capacity.
The sweeping decision has huge implications for treaty rights across Canada and is expected to be appealed. Justice Campbell went on to condemn Canada’s “surprisingly negative and disrespectful attitude” toward what he ruled was a constitutional right .
The Canadian Taxpayers Federation has denounced the ruling as a “troubling precedent.”
The ruling gives the 40 First Nations of Treaty 8 more extensive tax rights than any Canadian First Nations.
Treaty 8 Political Advisor Jim Badger said, ” This case is truly part of legal history, particularly in the areas of aboriginal and treaty rights. It is about treaty rights and getting our rights affirmed in Canada’s courts – rights that are constitutionally protected. They supercede both federal and provincial legislation that was intended to extinguish and diminish treaty promises.”
The strength of the judgement derives from the 1997 Supreme Court of Canada’s Delgamuukw decision that ruled that the oral tradition of aboriginal peoples be given equal weight as written documentary evidence.
Justice Campbell went so far as to scold the intervening Canadian Taxpayers Federation (CTF) of “unfairly playing the race card to gain publicity.”
He called the CTF’s position “ill-informed, misguided and inflammatory.”