scholarly journals Policy Forum: In Defence of the First Nations Fiscal Management Act

2021 ◽  
Vol 69 (3) ◽  
pp. 829-833
Author(s):  
André Le Dressay
Keyword(s):  
First Nations ◽  
Financial Management ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Administrative Capacity ◽  
Fiscal Management ◽  
Debt Capital ◽  
The Supreme Court ◽  
Governmental Power ◽  
Policy Forum

The debate with respect to the recognition of Indigenous rights, title, and jurisdiction has largely been won. It has now moved to how best to implement those rights, title, and inherent jurisdictions. For Indigenous taxation jurisdiction, implementation must address challenges related to taxpayer representation, concurrent jurisdiction, service agreements with other governments, administrative capacity, financial management, and access to public debt capital at competitive rates. In this article, the author argues that the First Nations Fiscal Management Act (FMA) has been successful in overcoming these challenges. The FMA has protected and expanded Indigenous tax jurisdiction through standards and institutional support. As a result, it represents an effective path for interested Indigenous governments "to exercise [their] inherently governmental power of taxation" affirmed by the Supreme Court of Canada in <i>Matsqui Indian Band</i>, and to expand their use of that power.

scholarly journals Ghost Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada, Grace Li Xiu Woo (Vancouver: UBS Press 2011)

2012 ◽  
Vol 50 (1) ◽  
pp. 219
Author(s):  
The Honourable John D. Reilly
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Indian Reserve ◽  
Nations Community

I write this review at the request of the Alberta Law Review. I assume they asked me for a couple of reasons. First, I sat as a judge for over thirty years, presiding over most of the cases arising on the Stoney Indian Reserve at Morley, Alberta. Second, I have written a book, based on that experience, entitled Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community.

scholarly journals The Potential Impact of Indigenous Rights on the International Law of Nationality

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 135-139
Author(s):  
Kirsty Gover
Keyword(s):  
International Law ◽  
Legal Status ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Potential Impact ◽  
Human Rights Norms ◽  
Domestic Law ◽  
Court Of Appeal

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

scholarly journals Policy Forum: Implementing the Chippewas of Georgina Island First Nation Property Tax System—Opportunities, Challenges, and Lessons Learned

2021 ◽  
Vol 69 (3) ◽  
pp. 857-872
Author(s):  
Kate McCue ◽  
Bill McCue
Keyword(s):  
First Nations ◽  
Property Tax ◽  
Lessons Learned ◽  
First Nation ◽  
Property Taxes ◽  
Tax System ◽  
Fiscal Management ◽  
Local Services ◽  
Policy Forum ◽  
Do So

In 2018, the Chippewas of Georgina Island First Nation (GIFN) implemented a First Nation property tax system under the First Nations Fiscal Management Act (FMA)—one of the earliest First Nations in Ontario to do so. Implementation of a property tax system gave GIFN an opportunity to improve funding for and expand local services, and provide a more equitable sharing of local service costs between cottagers leasing First Nation land and the First Nation. Key challenges encountered when implementing the property tax system were building consensus around the need for a tax system, building an appropriate administrative infrastructure, carrying out property assessments, and professionals lacking knowledge of First Nation property tax. These challenges, however, presented opportunities to create a knowledge base around property taxation within GIFN, among cottage leaseholders, and in the wider community. Key lessons learned were (1) start as soon as possible; (2) First Nations Tax Commission support and standards are important; (3) staff training is important; (4) communicate early and often; (5) hold open houses; (6) local services are more than garbage collection; (7) property taxes do not harm lease rates or cottage sales; (8) educate lawyers, real estate agents, and other professionals; (9) startup costs were significant; (10) coordinate laws and standards with provincial variations; (11) modernize systems; and (12) utilize other parts of the FMA.

scholarly journals Indigenous Title and its Contextual Economic Implications: Lessons for International Law From Canada’s Tsilhqot’in Decision

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 215-219 ◽  
Author(s):  
Dwight Newman
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Land Rights ◽  
Supreme Court Of Canada ◽  
Economic Implications ◽  
The Supreme Court ◽  
Indigenous Land Rights ◽  
International Instruments ◽  
Indigenous Land

International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.

Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

2021 ◽  
pp. 026377582110634
Author(s):  
Anthony W Persaud
Keyword(s):  
First Nations ◽  
Private Property ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Land Relations ◽  
Aboriginal Title ◽  
Cultural Ecological ◽  
Economic Future ◽  
The Relationship

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

scholarly journals De facto and de jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada Ryan

2019 ◽  
Vol 27 (1) ◽  
pp. 25-34 ◽  
Author(s):  
Ryan Beaton
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
Short Story ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
The Supreme Court ◽  
Shed Light

This paper offers a short story of Crown sovereignty at the Supreme Court Canada in order to shed light on questions the Court has raised about the legitimacy of Crown sovereignty over territory claimed by First Nations. In skeletal form, the story is simple. The Crown — first Imperial British and later Canadian federal and provincial — asserted sovereignty over what is now Canadian territory, and Canadian courts (and the Judicial Committee of the Privy Council) accepted those assertions without question. Yet the Supreme Court of Canada has lately qualified Crown sovereignty in striking ways, perhaps most notably in speaking of “de facto Crown sovereignty” in reasons released in 2004.

scholarly journals Policy Forum: Sagaz at 20—Evaluating Employment and Independent Contractor Relationships in a Changing World

2021 ◽  
Vol 69 (2) ◽  
pp. 453-473
Author(s):  
Graham Purse
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Independent Contractor ◽  
On Demand ◽  
Gig Economy ◽  
The Supreme Court ◽  
Work World ◽  
Policy Forum ◽  
Benefits And Costs ◽  
Changing World

In 2001, the Supreme Court of Canada decided <i>Sagaz</i>. That decision became an important part of the Canadian jurisprudence that resolves whether a worker is an employee or an independent contractor. In the subsequent 20 years, the work world has changed. Traditional tests of worker classification may not be appropriate in the new on-demand or gig economy. The multifactor tests that courts use to slot workers into two discrete categories, each with vastly different benefits and costs, are arguably no longer appropriate. Future approaches to this issue should consider either the use of legal tests that are more likely to produce a determination that workers are entitled to various social protections or, alternatively, rules that deem more workers to pay into, and be protected by, various social protections available to employees.

scholarly journals Policy Forum: A Critical Analysis of Property Taxation Under the First Nations Fiscal Management Act as a Self-Government Tool

2021 ◽  
Vol 69 (3) ◽  
pp. 799-812
Author(s):  
Audrey Boissonneault
Keyword(s):  
First Nations ◽  
Federal Government ◽  
Financial Management ◽  
Assessment Process ◽  
Property Taxes ◽  
Significant Control ◽  
Fiscal Management ◽  
Property Assessment ◽  
Appeal Process ◽  
The Right

The First Nations Fiscal Management Act (FMA) delegates the power to levy property taxes to band councils. The purpose of this article is to describe and analyze the effectiveness of the legislation as a self-government tool. Section 5(1) of the FMA allows band councils to levy property taxes both to increase their economic capacity—providing them with a source of income—and to improve self-government. However, this grant of power is subject to numerous conditions. These include compliance with the financial management requirements set out in the act, as well as approval of property tax laws by the First Nations Tax Commission (FNTC) (the majority of the members of which are appointed by the federal government). Also, the taxes imposed must comply with regulations set by the governor in council, which currently cover the property assessment process (including an appeal process), interest and penalties, and inspection of property. There have been two attempts by property taxpayers to overturn the decisions of the FNTC by way of judicial review. The fact that both were unsuccessful has somewhat mitigated criticism of the constraints on First Nation self-government imposed by the FMA. Overall, the federal government maintains significant control over the law-making process by which First Nations levy property taxes, both directly through regulations and indirectly through its dominant presence on the FNTC. Reform is needed: real powers need to be delegated to meet the stated objective of creating meaningful self-government for participating First Nations. The power to impose property taxes was first delegated to band councils by the Indian Act in 1951. Therefore, it is high time that First Nations be granted the right to exercise that power without federal intervention. Constitutional protection of the right to self-government must be the ultimate goal.

scholarly journals The Supreme Court and Civil Liberties

1969 ◽  
pp. 97
Author(s):  
Stephen Allan Scott
Keyword(s):  
Supreme Court ◽  
Civil Liberties ◽  
Supreme Court Of Canada ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Natural Justice ◽  
Legislative Authority ◽  
The Supreme Court ◽  
Governmental Power ◽  
Single Part

Of the plan suggested by its title (intended to embrace amongst other things some treatment of the Canadian BiU of Rights and relevant aspects of the distribution of legislative authority) this paper as delivered is confined to single part dealing with the rule of law. Roncarelli v. Duplessis, probably the single most celebrated of the Supreme Court's decisions, is chosen as the source of four themes. Each involves conflict between the individual's rights and liberties and governmental power. The author argues that lawful governmental action especially competent legislation and anything which is authorized by competent legislation is damnum sine injuria. Some of the harshest consequences of legislative supremacy have however been mitigated by various common law rules, notably those governing natural justice, the prerogative remedies, mens rea in the criminal law, the condition of reasonable ness implied into at least some statutory powers, and the restriction of subdelegation. The author examines critically the work of the Supreme Court on these subjects, as also on the matter of access to the courts for redress, question central to individual liberty, both as regards the jurisdiction of the Supreme Court of Canada itself, and that of the other superior courts.

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