Fact Sheet

May 2004

UPDATE: Charles John Gordon Benoît et al vs. Her Majesty the Queen in right of Canada

Issue

Whether the Crown has the ability to tax the descendants of members of Indian Bands who were signatories to the 1899 Treaty No. 8.

Historical Background

On September 16, 1992, Mr. Charles Benoît began legal action against the Government of Canada to seek a tax exemption under Indian Treaty No. 8. Certain tribal councils were later joined as plaintiffs to the action.

Treaty No. 8 was signed June 21, 1899. On September 22, 1899, the Commissioners of Indian Affairs, who negotiated the Treaty on behalf of the Crown, prepared a report for the Superintendent of the Department. This report was an overview of the treaty and treaty negotiations. In it the Commissioners wrote that they assured some of the bands that the treaty would not "open the way to the imposition of any tax."

Treaty No. 8 includes the northeastern portion of British Columbia, the northern half of Alberta and Saskatchewan and the southern portion of the Northwest Territories.

The plaintiffs claim that the Commissioners' report forms part of the treaty and, as a result, the statement provides a treaty right to a tax exemption, which was not extinguished and is now protected by the Constitution.

The Crown's position is that the Commissioners' statement has been taken out of context since they also informed the bands that as signatories they would be subject to the laws of the land. The statement was meant to convey that the provisions of the treaty itself would not impose a tax. If a right to a tax exemption was created under the treaty, then the laws that were passed and enacted after the signing of Treaty No. 8 extinguished this right. In any event, the Crown is justified in imposing tax for the benefit of the common good.

The Province of Alberta and the Canadian Taxpayers Federation were joined as intervenors. The Federal Court Trial Division hearing took place over several weeks in 2001. Closing arguments were heard on January 22, 2002 and judgment was reserved.

Court decisions

On March 7, 2002, the Federal Court Trial Division ruled in favour of the plaintiffs, in finding a tax exemption based on Treaty No. 8.

On March 14, 2002, the Crown filed an appeal to the Federal Court of Appeal.

On June 11, 2003, the Federal Court of Appeal allowed the Crown's appeal and concluded, "…that the respondents did not establish that the Aboriginal signatories of Treaty No. 8 understood that the Treaty Commissioners had made a promise exempting them from taxation at any time for any reason."

On April 29, 2004, the Supreme Court of Canada denied Mr. Benoit's application for leave to appeal the decision of the Federal Court of Appeal.

The decision of the Federal Court of Appeal, which holds that Indian Treaty No. 8 does not provide a general tax exemption, is now final and binding.

Related fact sheet:

Charles John Gordon Benoît et al vs. Her Majesty the Queen in right of Canada (March 2002)

This document is also available for download in .pdf format.

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