Benoit decision reversed

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Gordon Benoit's startling Federal Court victory last year that saw the court rule that Treaty 8 members were promised tax immunity by the Crown at the time the treaty was signed, was overturned by the Federal Court of Appeal on June 11.

Treaty 8 sources say they intend to appeal that decision to the Supreme Court of Canada.

Although the issue of taxation was not mentioned in the 1899 treaty, a report indicated that the commissioners had promised that the treaty would not lead to taxation. Benoit and the Treaty 8 tribal council filed suit, arguing they had a treaty promise of tax exemption.

After listening to oral evidence from four Aboriginal witnesses, the trial judge decided that the Native signatories understood that they were entitled to such an exemption. The Crown appealed.

The appeal court ruled that the trial judge had made a palpable and overriding error of fact, as there was nothing in the record that could reasonably support his conclusion. The oral evidence was ambiguous and inconclusive. Its hearsay nature required that the judge approach it cautiously, especially given that the treaty and other documentary evidence were silent as to the existence of any tax promises. While Aboriginal oral history was not to be undervalued, Aboriginal claims had to be established on the basis of persuasive evidence.

"Today's decision is not a surprise, nor does it make us any less determined," said Treaty 8 spokesperson Tanya Kappo. "We have always expected this issue would continue through higher levels of justice, both domestically and internationally."