Examining the provisions of section 87 of the Indian Act as a means to promote economic participation and treaty implementation
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Date
2017
Authors
Tait, Myra J
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Abstract
Canadian courts, despite recognition in the Canadian Constitution, 1982 that treaties are to govern the Crown-Aboriginal relationship, continue to develop principles of interpretation that narrow Aboriginal and treaty rights, including the taxation provisions of the Indian Act. In Robertson, the Federal Court of Appeal, building on Mitchell v Peguis, articulated a “historic and purposive” analysis, by reliance on a distinctive culture test and an ascribed protection rationale, thereby abrogating the fundamental treaty relationship. As a means to fuller implementation of the spirit and intent of Treaties, taxation provisions must be interpreted in a treaty-compliant manner. The potential for economic participation through a proposed “urban reserve” on the Kapyong Barracks in Winnipeg, Manitoba, as part of a Treaty 1 settlement, is discussed as a case study, and compared with similar developments in New Zealand, under a Waitangi Tribunal settlement, as an example of treaty compliance in economic development.
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Keywords
Indian Act section 87, Economic development, Tax exemption, Numbered Treaties, Treaty interpretation, Urban reserves, Native Leasing Services, Kapyong, Historic and purposive, Waitangi Tribunal