Supreme Court refuses to hear Benoit case

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With six simple words on April 29, the Supreme Court of Canada ended a 12-year battle over the off-reserve, tax-exempt status of Treaty 8 people.

"Dismissed with costs to respondent" was the only direction from the Supreme Court to those seeking leave to argue Benoit versus the Crown before Canada's highest court.

The Benoit case set out to persuade Canadian courts that the First Nations people who signed Treaty 8 in the 1890s understood the agreement would "not open the way to the imposition of any tax." They argued that the promise, as written by the treaty commissioners in a report in September 1899 to the superintendent general of Indian affairs, not only provided tax-exempt status to on-reserve members, but provided that tax exemption to Treaty 8 people who lived, worked and operated businesses off reserve.

At trial, the Federal Court of Canada found in favor of Benoit, but its decision was overturned by the Federal Court of Appeal. Treaty 8 plaintiffs hoped the Supreme Court would put to rest the question.

With leave to bring the case forward denied, the appeal court ruling stands, and that doesn't sit well with First Nations leaders who say the taxation issue remains unresolved for them.

"You know, we were having a good fight and, for whatever reason, this fight was supposed to go three rounds. We won one, they won one round and I believe we could have won the third round, but, for whatever reason, they decided to shut the lights off and we can't go there," said Chief Jerry Paulette of Smith's Landing.

There are 40 First Nations in the Treaty 8 area, which runs in a strip across northern Alberta and into northern Saskatchewan and British Columbia. Smith's Landing is the only Treaty 8 nation in the Northwest Territories, and Paulette was responsible for the Benoit file on behalf of the Treaty 8 First Nations of Alberta.

The case was launched in 1992 by Gordon Benoit from the Mikisew Cree Nation in Alberta, but it had grown to include plaintiffs representing 13 of the 23 Treaty 8 First Nations in that province. Paulette said the Treaty 8 nations in Saskatchewan and British Columbia were supportive of the case, but had not participated because of a lack of resources.

Elizabeth Johnson, legal council for Benoit, said many cases seek leave to argue before the court, but only a handful of cases are heard every year.

Paulette was frustrated that the court dismissed the case without giving cause, which is the standard practice.

"The Supreme Court judges don't tell us why they are not going to hear it, so we can't technically take them to task on some of their reasoning or rationale for not hearing it, 'cause they aren't providing a reason. They are just saying 'We don't want to hear it.' And it's unfortunate," said Paulette.

Archie Cyprien, grand chief of the Treaty 8 First Nations of Alberta, said it was sad the issue has not been fully addressed. He told Raven's Eye his organization had to regroup and assess the situation to determine what other steps could be taken, now that the Supreme Court had effectively blocked the way on the legal front.

Chief Rose Laboucan, grand chief of Lesser Slave Lake, was pushing for political action to begin immediately.

"I think there is a political strategy we could put together and to lobby Paul Martin's Liberal election platform right now."

She said First Nations had to press the prime minister on the commitments he made at the Canada-Aboriginal roundtable held in Ottawa on April 19, where Martin said he wanted to renew and strengthen the covenant between Canada and First Nation communities.

"I feel we should lobby his platform and if he was really serious about those roundtable discussions in Ottawa, and hopefully it wasn't just a show, that he will listen to what we have to say."

Cyprien agreed.

"We will have to consider the political aspects. I was also involved in the roundtable discussions in Ottawa, so the discussion around that table dealt with economic development and opportunities and a better working relationship with First Nations people and the federal government, and these decisions don't help in terms of forwarding those efforts... In my opinion, I thought the roundtable discussions had an opportunity, more so than in the past, and I thought that was genuine, but decisions like this [of the Supreme Court] doesn't help the efforts that are being put forward."

Cyprien said it was regrettable that First Nations had to go to the courts in the first place, that they couldn't deal with government on treaty issues outside of that system through negotiation.

Paulette had some hope that the Supreme Court decision didn't shut the door on the issue forever.

"The Crown can negotiate. All they, basically, have to do is be creative about how they would want to negotiate this thing ... I know Treaty 8 would be more than glad to negotiate their treaty rights and implement these treaty rights. Ultimately, at the end of the day, the court, we know, is only going to say, 'Yeah, there might be an existing right.' And usually they leave it up to the parties to try and work out some kind of arrangement on the ground."

Asked whether there would be a backlash against Gordon Benoit or Treaty 8 for taking the case to court and losing, Paulette said "It was going to take one person, and in this case it took Gordon Benoit to say 'I'm going to take the government to court, you know, on my treaty right that I'm immune from tax as was promised in the treaty-making process.' And whether it was him or another person, as soon as that was triggered the fight is on. The battle was engaged."