On January 17, 2013, the Supreme Court of Canada denied the Blood Tribe’s application for leave to appeal the Alberta Court of Appeal’s decision in Blood Tribe v. Canada (Attorney General),2012 ABCA 206. The underlying claim centred on the Crown’s duties regarding the Tribe’s attempt to obtain an exemption from the Excise Tax Act for the production of fuel from an oil refinery – one with underlying property that the Tribe planned to purchase and then convert to reserve land.
In 1998, the Blood Tribe entered into a non-binding letter of intent to purchase an oil refinery. The Tribe planned to convert the property containing the refinery into reserve land, in the hope that the production from the refinery would be exempt from excise tax by virtue of section 87 of the Indian Act. Section 87 exempts “the personal property of an Indian or band situated on a reserve” from taxation, as well as providing that “no Indian or band is subject to taxation in respect of the ownership, occupation, possession or use” of the property. One of the conditions of the letter of intent was confirmation from Revenue Canada that the refinery production would be exempt from excise tax.
During the process to approve in principle the addition of the refinery property to reserve land, the Blood Tribe sought a remission order exempting it from any future tax should the purchase of the refinery and conversion to reserve lands be realized. The Blood Tribe sought this order to gain standing in Court to challenge Canada on the excise tax issue. The Department of Finance refused to grant the remission order on the basis that tax remission orders should not be used simply to give standing in court on tax issues.
In 2005, the Blood Tribe filed a Statement of Claim against the Crown for damages of $150,000,000, alleging breach of fiduciary duty and unjust enrichment. The Tribe also sought a declaration that the production of fuels at the oil refinery on reserve lands would be exempt from excise tax.
The Crown applied for summary dismissal of the claim on the grounds that the Blood Tribe’s claim was bound to fail. While the lower court judge dismissed the Crown’s application, the Alberta Court of Appeal overturned the lower court decision and dismissed the Blood Tribe’s action.
In doing so, the Court expressly noted, relying on the Supreme Court of Canada’s decision in Wewaykum Indian Band v. Canada, 2002 SCC 79, that not all obligations of the federal Crown in its dealings with Aboriginal peoples are of a fiduciary nature, nor do fiduciary duties exist at large. Further, even if the Crown did have a duty to assist in the creation of the commercial venture, the Court determined that it was not obliged to agree with the Tribe’s interpretation that section 87 of the Indian Act entitled it to an exemption since the performance of public law duties, such as interpreting the Excise Tax Act, require the Crown to consider its duties and obligations to other parties when determining the scope of its duty to Aboriginal groups.
The Court of Appeal also dismissed the Blood Tribe’s request for a declaration that the refinery would be exempt from excise tax as the proposed commercial venture was based on hypothetical facts that may never occur.
A decision of the Supreme Court of Canada denying leave does not mean that the Court agrees with the decision from which leave was applied for. However, the denial of leave means that on the issues decided in the Court of Appeal decision, the decision is binding in Alberta and persuasive throughout the country. Regardless, under the Court of Appeal’s decision, the federal Crown does not owe a fiduciary duty to a First Nation to assist with a commercial venture in the absence of an express commitment to do so.
It remains to be seen if the federal Crown owes any lower form of obligation to First Nations in the pursuit of commercial ventures on reserve. Given the interest of many First Nations in establishing business ventures on reserve, together with the federal Crown’s involvement in decisions involving reserve lands, it would appear that this issue could find itself before the courts again in a different form.