Digests

Jeddore v. Canada

A-709-01

2003 FCA 323, Sharlow, Evans JJ.A.

28/8/03

39 pp.

Taxation--Mr. Jeddore appealed against Minister of National Revenue's reassessment of appellant's tax liability which Tax Court of Canada later dismissed: Jeddore v. The Queen, 2001 D.T.C. 1058 (T.C.C.)--On appeal, appellant argued Government of Newfoundland in 1870 or 1872 set apart Conne River lands for exclusive use of Mi'kmaq people living there--Thus, reserve thereby validly created under pre-Confederation law of Newfoundland--Appellant resided all his life at Conne River, now within Samiajij Miawpukek Indian Reserve created in 1987--Appellant maintained lands were reserve in 1984 and income generated in 1984 by his business on reserve exempt from income tax as "the personal property of an Indian situated on a reserve" by virtue of Indian Act (Act), s. 87(1)(b)--Whether Tax Court Judge erred in law when failed to consider whether reserve had been validly created at Conne River in accordance with law of Newfoundland before it joined Confederation--Theoretical premise of appellant's argument that colonial law of Newfoundland in 1872 might have been that it was consistent for colonial government to set apart claimed reserve area for Mi'kmaq people, while also granting time-limited conditional rights to certain individuals to acquire fee simple interests in particular lots within same area (licences of occupation)-- Argument fails for lack of evidence of legal context-- Appellant not entitled to have new trial to attempt to fill evidentiary gap--Appeal dismissed (concurring reasons by Evans J.A.): Whether Tax Court Judge erred in concluding on material before him that "reserve" within meaning of Act did not exist at Conne River in 1984--First, whether fatal to appellant's appeal that lands in question not vested in federal Crown in 1984--Fact that legal title not vested in Her Majesty in right of Canada in 1951 would not in itself preclude lands at Conne River from being reserve in 1984--Second, legal tests for determining if Indian Act reserve had been created found in Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816 (Ross River)--Ross River confirms, in absence of legislation, reserves created by exercise of royal prerogative setting aside land for use and benefit of Indian band--Third, applying test to case at bar, whether Crown intended to set apart and hold lands for use and benefit of Mi'kmaq and whether grant of Conne River lands to Mi'kmaq made to them as Indians or as settlers who happened to be Indians-- Consequently, analysis of two elements relevant to appeal: (a) 1870 Minute and licences of occupation; and (b) oral history evidence--1870 Minute evidences general intention of Crown to make grant of land to Mi'kmaq, but its terms do not reveal intended form of grant--Issue of 17 five-year licences of occupation with respect to most of land claimed to be reserve, two years after 1870 Minute, suggests Crown had not intended to create reserve in 1870, because licences granted proprietary interests in particular lots to individuals--Executive Council had not intended in 1870 to create reserve in Indian Act sense also supported by fact licences contain signatures of three of members of Executive Council present at meeting of Council on April 27, 1870, to which Minute related--Unlikely they would have agreed to issue licences of occupation if, in 1870, Executive Council had intended grant to take unusual form of communal rights over all land, rather than of individual proprietary rights with respect to particular lots--Fact one of lots within area claimed as reserve occupied by non-Aboriginal person further supports view Executive Council intended to grant lands at Conne River to residents as settlers, not as Indians--As to oral history evidence, hearing of appeal ended on day Court released decision in Benoit v. Canada (2003), 228 D.L.R. (4th) 1 (F.C.A.)--In Benoit, Court applied established law respecting oral history evidence--Court may not give weight to evidence of oral tradition disregarding fundamental principles of law of evidence--Rather, Court must assess reliability and relevance of oral tradition evidence in light of entirety of evidence before it--Oral history evidence not sufficiently cogent as to render Judge's overall conclusion Crown did not intend to create Indian Act reserve "clearly wrong" or "contrary to overwhelming weight of evidence"--In order to justify intervention by Court on ground Judge committed reviewable error by attaching so little weight to oral history evidence as to amount to reversible error, evidence would have to be sufficiently clear and compelling as to throw into real doubt propriety of Judge's conclusions--Mostly, oral history evidence very vague about identifying government officials--Most specific aspect of evidence relates to Mi'kmaq's belief that Murray has told them that land had been or would be set aside for them supported by report written in 1872 by Henry Camp, Warden of River Fisheries--Neither witness traced source of Mi'kmaq's belief to someone alive in 1869--To extent oral tradition evidence said to support creation of reserve under colonial law, evidence irrelevant--Taxpayers only entitled to benefit of s. 87(1)(b) if they prove income situated on reserve, as term has been interpreted with respect to reserves created in Canada--Oral history evidence falls far short of what would be required to demonstrate, in case where documentary evidence very significant, inferences drawn by Tax Court Judge from evidence as whole clearly wrong or against overwhelming weight of evidence--Treatment of oral history evidence did not constitute error of law--Indian Act, R.S.C., 1985 c. I-5, ss. 2(1) (as am. by R.S.C., 1985 (1st Supp.), c. 32, s. 1; (4th Supp.), c. 17, s. 1; S.C. 2000, c. 12, s. 148), 36, 87(1)(b).